DOCUMENT*
DEPT.
THE
VIRGINIA REPORT
OF
1799 1800,
TOUCHING THE
ALIEN AND SEDITION LAWS;
TOGETHER WITH THE
VIRGINIA RESOLUTIONS
OF DECEMBER 21, 1798,
THE DEBATE AND PROCEEDINGS THEREON
IN THE
HOUSE OF DELEGATES OF VIRGINIA,
AND
SEVERAL OTHER DOCUMENTS
ILLUSTRATIVE OF
THE REPORT AND RESOLUTIONS.
RICHMOND:
J. W. RANDOLPH, 121 MAIN STREET,
ALSO FOR SALE BY FRANCK TAYLOR, WASHINGTON ; GUSHING ANT) BROTHER,
BALTIMORE; AND T. AND j. w. JOHNSON, PHILADELPHIA.
1850.
/Giro
Entered, according to Act of Congress, in the year 1850,
BY J. W. RANDOLPH,
In the Clerk's Office of the District Court in and for the Eastern District of Virginia.
PHILADELPHIA:
C. SHERMAN, PRINTER.
PREFACE.
THE clesign of this pamphlet, an edition of which was printed at Rich-
mond some years ago, is to convey to the public the " Virginia Report of
1799," a state paper which, having wrought a great effect upon the politi-
cal parties of its day, is still, though more praised than read, highly
esteemed as a commentary on the Federal Constitution. The other papers
which go along with the " Report," are intended, like this preface, only to
illustrate it.
After the lapse of so many years, the reader, it is hoped, will not take
it amiss that his memory is refreshed as to some of the incidents of the
period that gave birth to this document ; a period perhaps the most critical
in our national annals.
The present Federal Constitution, succeeding to the " Articles of don-
federation," having been ratified by eleven states, commenced its' opera-
tion, nominally ', on the 4th of March, 1789, under the auspices of WASH-
INGTON, as the first President. In his Cabinet, and in the first Congress,
were organized the parties afterwards known as " Federalists" and " Re-
publicans." The former, under the sagacious lead of Alexander Hamilton,
the Secretary of the Treasury, fearful of a recurrence of that anarchy
which had overtaken the country under the imbecile government of the
" Confederation," were inclined to a vigorous exercise of the federal power,
and consequently adopted a liberal construction of the Federal Constitution.
The Republicans, on the other side, headed by Mr. Jefferson, were appre-
hensive of a gradual absorption, by the central government, of the powers
reserved to the states and to the people. Consolidation was their great
terror, as the absence of all government was the terror of their opponents ;
and consolidation they viewed, justly, as the forerunner not of monarchy
only, but of despotism.
997904
X PREFACE.
Mr. Hamilton, being a declared admirer of the English Constitution in
the abstract, gave occasion to many of the 'opposite party to impute
to him, and to his political associates, sentiments unfavourable to the
existing institutions of the country ; in short, a proclivity to monarchy.
This suspicion, undoubtedly unjust as regards the great mass of the Fede-
ralists, was fortified by their avowed opinions touching the necessity of
what, in the phrase of the time, was called a strong government.
The occurrence of the French Revolution affected these parties with
different emotions. The Republicans looked on in trusting faith that it
would result in giving to France institutions modelled after our own, cal-
culated to insure rational freedom, but affording no encouragement to
licentiousness. The Federalists were less sanguine. They feared that the
French people neither appreciated the blessings of liberty founded on law,
nor were capable of attaining them, and they conceived all their conclu-
sions confirmed by the succession of tragic scenes which accompanied the
progress of the Revolution. Thenceforward sympathy with France con-
stituted a prominent point of difference between their adversaries and
themselves.
In 1793, upon the execution of Louis XVI., a war broke out between
France and England, which, as it was characterized by unusual animosity
between the contending parties, led to an emulous violation by both of
the rights of neutral commerce. From these outrages no country suffered
more than the United States, the citizens of which, instead of uniting to
require indemnity from both belligerents, allowed their partisan feelings to
array them as the apologists, or the denouncers, of one or the other, as
previous tendencies disposed them. The Republicans favoured France,
influenced as well by a natural sympathy for a great people struggling, as
they supposed, for freedom, as by gratitude for the assistance so recently
received in the war of our Revolution, and animated by a hostility, not
yet extinct, towards our former enemy, Great Britain. The Federalists
leaned towards England as the champion of conservatism, and the bul-
wark against that pernicious license everywhere propagated by French
writers and emissaries.
The Republicans identified France with liberty, and cherished its cause
with proportionate ardour. The Federalists saw in it only irreligion, pri-
vate profligacy, bloody excess, and, in the end, the despotism of the sword,
and abhorred it as a combination of all that was hateful to their reason,
and their habits.
On the other hand, England was to the Federalists the embodiment of
a government at once vigorous and free ; not insensible to the opinions of
PREFACE. Xl
its people, but impassive to their prejudices and passions ,- and the regard
due to those qualities, was extended to the country. To the Republicans,
England was a monarchy, and their late oppressor, and now appeared to
be a reluctant and surly friend, in each and all of which characters, it
was alike odious.
The war had not been long in progress, when many Americans, stimu-
lated by French agents, and the thirst of gain, and relying upon the pre-
possessions of their countrymen, hastened to fit out armed vessels in several
of our ports, to cruise under French commissions, against the enemies of
France. England remonstrated, and there was issued, in consequence,
General Washington's famous proclamation of neutrality, which, with the
instructions founded upon it, rigorously interdicted such enterprises for
the future. This led to a correspondence between Mr. Jefferson, then
Secretary of State, and Genet, the French minister, resident here, in
which the latter, confiding in the supposed popular partiality for France,
crowned a series of impertinences by threatening to appeal from the
government to the people of America, and was in consequence, by the
request of the President, recalled.
Genet's recall, his successor being a man of more moderation, had the
effect to restore those cordial feelings for France to which the former's
indefensible conduct had given a s'hed^ Meanwhile our commerce was
suffering much from the depredations of both belligerents. In 1794, Mr.
Jay, the Chief Justice of the United States, having been despatched as a
special envoy to England, to adjust the numerous differences which had
been accumulating with that country since the peace of 1783, the jealousy
of France blazed fiercely out ; and when, the next year, the treaty nego-
tiated by Mr. Jay was ratified by our government, the indignation of the
Directory knew no bounds. Spoliations of our commerce were committed
with as little reserve as if actual war existed, and the conduct of the Frencji
government was marked by every circumstance of contumely.
Jay's treaty, meanwhile, was received in America with a severity of
reprehension which bespoke the decided Anti-Anglican dispositions of our
people. It must be admitted, indeed, to have involved a painful sacrifice
of the rights of our country, in more than one particular. It had the effect,
however, to postpone a war with England until we were better able to
bear it, and, our Union preserved, we shall probably never again be
subjected to a like humiliation. The manifestations of popular feeling in-
duced, in the French Directory, the conceit that the government of Ame-
rica might be separated from its citizens. Acting upon this delusion, they
took leave of Mr. Monroe, then our representative at Paris, with warm
Xll . PREFACE.
professions of regard for the people of America, and of undisguised hostility
to the administration, and refused, with studied indignity, to receive Mr.
Pinckney, who had been sent out as Mr. Monroe's successor.
Parties in the United States were thus situated when General Washington,
at the end of his second term, resigned the reins of power to Mr. Adams,
who was himself a Federalist, and chose his cabinet from those of kindred
sentiments. Very soon after his accession, Mr. Adams made an effort to
compose our misunderstanding with France by sending thither a solemn
embassy, consisting of Mr. Charles C. Pinckney of South Carolina, Mr. Mar-
shall of Virginia, and Mr. Gerry of Massachusetts. The joint appointment
of gentlemen so distinguished ought to have evinced to France the strong
desire of our government to conciliate her. They were treated, however,
with an insolence inconceivable, were not admitted to an audience, and
were subjected to the mortification of being approached by certain agents
of Talleyrand, the minister for public affairs, with proposals as degrading
as they were direct, for a bribe. The proposition was, that 50,000
sterling should be distributed amongst certain members of the Directory,
as the necessary price of entering upon the negotiation. The envoys
having peremptorily refused to buy, in any way, the privilege of present-
ing the just demands of- their country, Messrs. Pinckney and Marshall
were dismissed ; Mr. Gerry, who, as belonging to the Republican party,
was insultingly supposed to be more pliable, being requested to remain.
The envoys having communicated these transactions to their govern-
ment, the correspondence was laid before Congress, and printed, the names
of Talleyrand's brokers being veiled under the respective letters X. Y. Z.
and W. The publication, like an electric shock, awakened all the dor-
mant fires of patriotism in America. As one man the people stood for-
ward prepared to vindicate the insulted honour and violated rights of their
country. The President, anticipating the national spirit, in his message
of 21st June, 1798, communicating the return of Mr. Marshall to the United
States, peremptorily declared that he would " never send another minister to
France without assurances that he would be received, respected, and
honoured, as the representative of a great, free, powerful, and independent
nation."
So strong was the general irritation under what was called " the X. Y.
Z. excitement," that party lines were in a degree obliterated, and the ad-
ministration of Mr. Adams was, for a brief period, lifted to a great height
of popularity, whence, however, it was very soon precipitated into irre-
trievable disgrace. i
The Federalists, elated at the spring-tide of favour setting in upon the
PREFACE. Xlll
administration, resolved to avail themselves of it to the utmost. With
this view they proceeded vigorously with preparations for a war with
France, and determined to take decisive steps to expel from the country
all aliens who might be supposed hostile or dangerous to its institutions.
Thus they hoped to keep up the excitement of anger against France, and
of jealousy" against her apologists amongst our own people, whilst they
got rid of the French propagandists, and unquiet English and Irish agitators,
who were employed too much in preaching license, under the name of
liberty. The Alien Act was accordingly passed 25th June, 17g8, being
especially aimed, it was thought, at Volney, Collot, Priestley, and a few
others. Then they essayed to curb what they called the licentiousness
of the press by the Sedition Act, which received the assent of the Presi-
dent on the 14th July, 1798.
These two laws, but especially the last, were fatal to the party which
originated them. The Alien Act alone, as being directed against com-
paratively few persons, and those strangers, might not have been so ob-
noxious, but the Sedition Law, trespassing, as it seemed to do, upon the
freedom of the press, so cherished by the Anglo-Saxon race, raised a
storm, before which all the recent popularity of Mr. Adams's administra-
tion vanished like morning mist.
Suspicions of the darkest ultimate designs were entertained and dissemi-
nated. " For my own part," says Mr. Jefferson, addressing a friend, " I
consider those laws as merely an experiment on the American mind, to
see how it will bear an avowed violation of the Constitution. If this goes
down, we shall immediately see attempted another act of Congress, de-
claring that the President shall continue in office during life, reserving to
another occasion the transfer of the succession to his heirs, and the esta-
blishment of the Senate for life!"
To these suspicions a deeper tinge was imparted by the preparations
for the impending war with France. These, however indispensable, ex-
posed the administration to misconstruction, and to complaints both loud
and deep. An additional army, first of 10,000 and afterwards of 30,000
men was authorized to be raised in the event of a declaration of war, or
an actual invasion, or imminent danger thereof, and the President was
besides, authorized to accept the services of an indefinite number of volun-
teers. A navy was also begun on a liberal scale. To meet the expense
of these measures, besides duties on imports, and a loan of $5,000,000, a
direct tax of $2,000,000, (whereof the quota of Virginia was $345,488 66,)
was laid on dwelling-houses, lands, and slaves. These burdens predispos-
XIV PREFACE.
ing the people to murmur, they hearkened readily to the vehement accu-
sations with which the press, the hustings, and even conversation teemed.
The Alien and Sedition Laws, the army and navy bills, and the large
sums placed within reach of the President, were represented as parts of
the same plan to perpetuate and enlarge his power.
In proportion as ideas like these gained ground, the Alien and Sedition
Laws became more odious. The zeal of the opposite party rising with
the prospect of success, and stimulated by a sense of the importance of
the principles supposed to be invaded, they addressed themselves, with
renewed ardour, to the task of overthrowing the administration. Nor
were its supporters idle or indifferent. The New England and the Middle
States were generally favourable to the party in power ; the Southern
and Western States were for the most part Republican. But minorities
imposing in numbers and in character existed on either side. Both par-
ties hastened to call into action all the political machinery available for
them respectively, of which the most efficient consisted in the solemn de-
clarations of the several state legislatures touching the obnoxious laws.
Important as the crisis really was, it was factitiously exaggerated by
the partisanship on both sides. The advocates of administration, in order
to maintain the constitutionality of the Sedition Act, amongst other argu-
ments, insisted that the offence denounced by it was, an offence at common
law, and was therefore punishable in the courts of the United States, in-
dependently of the statute. The statute, it was said, was even more
favourable to the accused than the common law. The assumption in-
volved in this argument, that the common law constituted part of the
federal jurisprudence, created more alarm than the main topics of com-
plaint, the Alien and Sedition Laws themselves. It was regarded as an
accumulation, at one stroke, of all authority in the hands of the- Federal
Government, there being no subject, legislative, executive, or judicial,
which the common law did not embrace; and it was anxiously urged
that the effect would be an annihilation of state sovereignty, and the
erection of a government consolidated, and therefore despotic. " Other
assumption^ of ungiven power," said Mr. Jefferson, " have been in detail.
The bank law, the treaty doctrine, the sedition act, alien act, the under-
taking to change the state laws of evidence in the state courts, by certain
parts of the stamp act, &c., &c., have been solitary, unconsequential,
timid things, in comparison with the audacious, bare-faced, and sweeping
pretension to a system of law for the United States, without the adoption
of their legislature, and so infinitely beyond their power to adopt."
PREFACE. XV
The legislatures of the several states prepared to bear their parts in the
drama. That of Virginia, which assembled in December, 1798, was
looked to by both parties with peculiar interest. The plan of opposition
to be pursued there was probably arranged by Mr. Jefferson and Mr.
Madison, though neither was a member. The plan was to resolve that
the Alien and Sedition Laws were unconstitutional and merely void, (which
latter phrase, however, was ultimately struck out of the resolutions, as
actually adopted,) and to address the other states, to obtain similar decla-
rations. It was not contemplated to commit the commonwealth to any
foreshadowed course of action, but to reserve the power to shape future
measures by the events which should happen. Mr. Jefferson drew the
resolutions for Kentucky,*' which was ready to act consentaneously with
Virginia, (and did, in fact, act before her,) and they' were proposed in
her legislature by Mr. Breckenridge. The Virginia resolutions,! sub-
mitted and ably defended by Mr. John Taylor, of Caroline, were from
the pen of Mr. Madison.
The Virginia resolutions, having been officially communicated to the
legislatures of all the other states, encountered from some of them a dis-
approval so decided as to make it necessary to sustain the propriety of
them by argument. Accordingly, during the whole summer of 1199, the
state was agitated with preparations for the approaching conflict. The
Republicans possessed a decided majority in the legislature, and amongst
the people, but the minority, besides being respectable for numbers, com-
prehended many individuals eminent for public and private virtue, for
capacity, and for services rendered their country, and were sustained also
by the august name of WASHINGTON.
The General Assembly, which convened in December, 1799, con-
tained an unusual weight of ability and experience. Virginia mustered
for the occasion her strongest men. The author of the resolutions was
chosen for the county of Orange, and against him was marshalled no less
a champion than PATRICK HENRY, who was elected from the county of
Charlotte, but died before taking his seat.
To that General Assembly was submitted from a committee, at the
head of which was Mr. Madison, that dignified and lucid report vindica-
tory of the resolutions of the previous year, ever since known in Virginia,,
as " Madison's Report," and out of it, as "the Virginia Report of 1799."
It assisted materially in perfecting the victory already, in effect, achieved
* See them, post, p. 163. The authorship of these resolutions has lately been
claimed for the distinguished gentleman who offered them.
t Post, p. 22.
XVi PREFACE.
by the Republican party. In the ensuing autumn, or rather winter, Mr.
Jefferson was elected President, and the Alien and Sedition Laws having
expired by their own limitation, no thought was entertained of renewing
them, and, their policy was abandoned, probably for ever.
This pamphlet, as remarked in the beginning, contains, besides the
" Report," certain other publications calculated to illustrate it. The
whole is arranged in the following order, viz. :
I. The Alien and Sedition Acts, 17 to 21.
II. Resolutions of Virginia of 21st December, 1798, with the debate
thereon, 22 to 161.
III. Resolutions of Kentucky of 10th November, 1798, 162 to 167.
IV. Counter-resolutions of several states in response to those of Vir-
ginia, 168 to 177.
V. Report of 1799, preceded by an analysis thereof, 178 to 237.
VI. Instructions to Virginia senators of January, 1800, and votes
thereon, 238 to 248.
VII. Appendix: containing
1. A letter from Mr. Madison to Mr. Everett, touching the con-
struction of the first resolution of 1798, 249 to 256.
2. A letter from the same to Mr. Ingersoll, relative to the Bank
question, 257.
3. A letter from the same to the same, on the same subject, 258
to 260.
In conclusion, it is proper to observe that this edition is intended
especially for the use of students, and that the learned rea'der must expect
to find in the notes, and in the analysis prefixed to the report, much with
which he could dispense.
THE VIRGINIA REPORT,
ETC. ETC.
I. THE ALIEN AND SEDITION ACTS.
AN ACT CONCERNING ALIENS.
[Approved June 25, 1798.]
ABSTRACT.
SECTION I. Confers power on the President to order aliens to depart.
1. What aliens.
Such as the President shall judge dangerous to the peace and
safety of the United States, or shall have reasonable grounds to
suspect of treasonable or secret machinations against the govern-
ment.
2. How proceeded against.
By the President's order to depart, served by .the marshal or other
person. But the President may grant a license to remain on
proof by the alien, that he is not dangerous ; and may require
bond and security of such person.
3. Consequences of disobedience.
Imprisonment, on conviction, not exceeding three years, and per-
petual disability to become a citizen.
SECTION II. Confers on the President power to remove aliens.
1. What aliens.
Such as are above described, who are
1. In prison, in pursuance of this Act.
2. Dangerous, and proper to be speedily removed. .
2. Consequences of returning without President's permission.
Imprisonment, on conviction, as long as the President thinks the
public safety requires it.
SECTION III. Requires masters of ships to report to officers of customs, all
aliens on board.
2
18 ALIEN AND SEDITION ACTS.
SECTION IV. Gives the District and Circuit Courts of the United States
cognizance of all offences against this Act ; and requires
marshals, and other officers of the United States to exe-
cute the President's orders under it.
SECTION V. Allows alien to remove his effects.
SECTION VI. Continues act in force for two years.
SECTION 1. Be it enacted by the Senate and House of Representatives
of the United States of America, in Congress assembled, That it shall be
lawful for the President of the United States, at any time during the con-
tmuanee'qf I his act, to order all such aliens as he shall judge dangerous
to the peace and safety of the United States, or shall have reasonable
gro'ufids. to .siispect- are concerned in any treasonable or secret machina-
tions against the government thereof, to depart out of the territory of the
United States within such time as shall be expressed in such order ; which
order shall be served on such alien, by delivering him a copy thereof, or
leaving the same at his usual abode, and returned to the office of the
Secretary of State, by the marshal, or other person, to whom the same
shall be directed. And in case any alien, so ordered to depart, shall be
found at large within the United States after the time limited in such order
for his" departure, and not having obtained a license from the President to
reside therein, or having obtained such license, shall not have conformed
thereto, every such alien shall, on conviction thereof, be imprisoned for a
term not exceeding three years, and shall never after be admitted to be-
come a citizen of the United States : Provided always, and be it further
enacted, That if any alien so ordered to depart shall prove, to the satisfac-
tion of the President, by evidence, to be taken before such person or per-
sons as the President shall direct, who are for that purpose hereby autho-
rized to administer oaths, that no injury or danger to the United States will
arise from suffering such alien to reside therein, the President may grant
a license to such alien to remain within the United States for such time as
he shall judge proper, and at such place as he may designate. And the
President may also require of such alien to enter into a bond to_the United
States, in such penal sum as he may direct, with one or more sufficient
sureties, to the satisfaction of the person authorized by the President to
take the same, conditioned for the good behaviour of such alien during his
residence in the United States, and not violating his license, which license
the President may revoke whenever he shall think proper.
SECT. 2. And.be it further enacted, That it shall be lawful for the
President of the United States, whenever he may deem it necessary for
the public safety, to order to be removed out of the territory thereof any
alien who may or shall be in prison in pursuance of this act; and to
cause to be arrested and sent out of the United States such of those aliens
as shall have been ordered to depart therefrom, and shall not have obtained
a license as aforesaid, in all cases where, in the opinion of the President,
the public safety requires a speedy removal. And if any alien so removed
or sent out of the United States by the President shall voluntarily .return
thereto, unless by permission of the President of the United States, such
alien, on conviction thereof, shall be imprisoned so long as, in the opinion
of the President, the public safety may require.
ALIEN AND SEDITION ACTS. 19
SECT. 3. And be it further enacted, That every master or commander
of any ship or vessel which shall come into any port of the United States
after the first day of July next shall, immediately on -his arrival, make re-
port in writing to the collector or other chief officer of the customs of such
port, of all aliens, if any on board his vessel, specifying their names, age,
the place of nativity, the country from which they shall have come, the
nation to which they belong and owe allegiance, their occupation, and a
description of their persons, as far as he shall be informed thereof, and on
failure, every such master and commander shall forfeit and pay three
hundred dollars, for the payment whereof, on default of such master or
commander, such vessel shall also be holden, and may by such collector
or other officer of the customs be detained. And it shall be the duty of
such collector or other officer of the customs, forthwith to transmit to the
office of the Department of State true copies of all such returns.
SECT. 4. And be it further enacted, That the Circuit and District
Courts of the United States shall respectively have cognizance of all
crimes and offences against this act. And all marshals and other officers
of the United States are required to execute all precepts and orders of
the President of the United States, issued in pursuance or by virtue of
this act.
SECT. 5. And be it further enacted, That it shall be lawful for any
alien who may be ordered to be removed from the United States, by vir-
tue of this act, to take with him such part of his goods, chattels, or other
property, as he may find convenient; and all property left in the United
States, by any alien who may be removed as aforesaid, shall be and re-
main subject to his order and disposal, in the same manner as if this act
had not been passed.
SECT. 6. And be it further enacted, That this act shall continue and
be in force for and during the term of two years from the passing thereof.
SEDITION ACT.
An act in addition to the act intituled, " An act for the punishment of
certain crimes against the United States"
[Approved July 14, 1798.]
ABSTRACT.
SECTION I. Punishes combinations against United States government.
1. Definition of offence:
Unlawfully to combine or conspire together to oppose any mea-
sure of the government of the United States, &c.
This section was not complained of.
20 ALIEN AND SEDITION ACTS.
I
2. Grade of offence :
A high misdemeanour.
3. Punishment:
Fine not exceeding 85000, and imprisonment six months to five
years.
SECTION IL, Punishes seditious writings.
1. Definition of offence :
To write, print, utter or publish, or cause it to be done, or assist
in it, any false, scandalous, and malicious writing against the
government of the United States, or either House of Congress,
or the President, with intent to defame, or bring either into con-
tempt or disrepute, or to excite against either the hatred of the
people of the United States, or to stir up sedition, or to excite
unlawful combinations against the government, or to resist it, or
to aid or encourage hostile designs of foreign nations.
2. Grade of offence :
A. misdemeanour.
3. Punishment:
Fine not exceeding $2000, and imprisonment not exceeding two
years.
SECTION III. Allows accused to give in evidence the truth of the matter
charged as libellous.
SECTION IV. Continues the Act to 3d March, 1801.
SECTION 1. Be it enacted by the Senate and House of Representatives
of the United States of America, in Congress 'assembled. That if any per-
sons shall unlawfully combine or conspire together, with intent to oppose
any measure or measures of the government of the United States, which
are or shall be directed by proper authority, or to impede the operation of
any law of the United States, or to intimidate or prevent any person hold-
ing a place or office in or under the government of the United States,
from undertaking, performing, or executing his trust or duty : and if any
person or persons, with intent as aforesaid, shall counsel, advise, or at-
tempt to procure any insurrection, riot, unlawful assembly, or combina-
tion, whether such conspiracy, threatening, counsel, advice, or attempt
shall have the proposed effect or not, he or they shall be deemed guilty of
a high misdemeanour, and on conviction before any court of the United
States having jurisdiction thereof, shall be punished by a fine not exceed-
ing five thousand dollars, and by imprisonment during a term of not less
than six months, nor exceeding five years ; and further, at the discre-
tion of the court, may be holden to find sureties for his good behaviour,
in such sum, and for such time, as the said court may direct. -
SECT. 2. And be it further enacted, That if any person shall write,
print, utter, or publish, or shall cause or procure to be written, printed,
uttered, or published, or shall knowingly and willingly assist or aid in
writing, printing, uttering, or publishing any false, scandalous and mali-
cious writing or writings against the government of the United States, or
either House of the Congress of the United States, or the President of the
United States, with intent to defame the said government, or either House
ALIEN AND SEDITION ACTS. 21
of the said Congress, or the said President, or to bring them, or either of
them, into contempt or disrepute ; or to excite against them, or either or
any of them, the hatred of the good people of the United States, or to stir
up sedition within the United States ; or to excite any unlawful combina-
tions therein, for opposing or resisting any law of the United States, or
any act of the President of the United States, done in pursuance of any
such law, or of the powers in him vested by the Constitution of the United
States ; or to resist, oppose, or defeat any such law or act ; or to aid, en-
courage or abet any hostile designs of any foreign nation against the
United States, their people or government, then such person, being thereof
convicted before any court of the United States having jurisdiction thereof,
shall be punished by a fine not exceeding two thousand dollars, and by
imprisonment not exceeding two years.
SECT. 3. And be it further enacted and declared. That if any person
shall be prosecuted under this act for the writing or publishing any libel
aforesaid, it shall be lawful for the defendant, upon the trial of the cause,
to give in evidence in his defence, the truth of the matter contained in the
publication charged as a libel. And the jury who shall try the cause shall
have a right to determine the law and the fact, under the direction of the
court, as in other cases.
SECT. 4. And be it further enacted, That this act shall continue and
be in force until the third day of March, one thousand eight hundred and
one, and no longer: Provided, That the expiration of the act shall not
prevent-or defeat a prosecution and punishment of any offence'against the
law, during the time it shall be in force.
II. RESOLUTIONS OF VIRGINIA
OF DECEMBER 21, 1798,
AND DEBATE AND VOTE THEREON,
RESOLUTIONS AS ADOPTED BY BOTH HOUSES OF
ASSEMBLY.
1. Resolved, That the General Assembly of Virginia doth unequivocally
express a firm resolution to maintain and defend the Constitution of the
United States, and the Constitution of this State, against every aggression,
either foreign or domestic, and that it will support the government of
the United States in all measures warranted by the former.
2. That* this Assembly most solemnly declares a warm attachment to
the union of the States, to maintain which, it pledges all its powers ; and
that for this end it is its duty to watch over and oppose every infraction
of those principles, which constitute the only basis of that union, because
a faithful observance of them can alone secure its existence, and the pub-
lic happiness.
3. That this Assembly doth explicitly and peremptorily declare that it
views the powers of the Federal Government as resulting from the compact,
to which the States are parties, as limited by the plain sense and intention of
the instrument constituting that compact; as no further valid than they are
authorized by the grants enumerated in that compact 5 and that in case of
a deliberate, palpable, and dangerous exercise of other powers not granted
by the said compact, the States, who are the parties thereto, have the right,
and are in duty bound, to interpose for arresting the progress of the evil,
and for maintaining within their respective limits, the authorities, rights,
and liberties appertaining to them.
4. That the General Assembly doth also express its deep regret that a
spirit has in sundry instances been manifested by the Federal Government,
to enlarge its powers by forced constructions of the constitutional charter
which defines them; and that indications have appeared of a design to
expound certain general phrases (which, having been copied from the very
limited grant of powers in the former articles of confederation, were the
less liable to be misconstrued), so as to destroy the meaning and effect of
the particular enumeration, which necessarily explains and limits the gene-
ral phrases, and so as to consolidate the States by degrees into one sove-
reignty, the obvious tendency and inevitable result of which would be to
DEBATE ON VIRGINIA RESOLUTIONS. 23
transform the present republican system of the United States into an ab-
solute, or at best, a mixed monarchy.
5. That the General Assembly doth particularly protest against the pal-
pable and alarming infractions of the Constitution, in the two late cases
of the " alien and sedition acts," passed at the last session of Congress,
the first of which exercises a power nowhere delegated to the Federal Go-
vernment ; and which by uniting legislative and judicial powers to those
of executive, subverts the general principles of free government, as well
as the particular organization and positive provisions of the 1 federal Consti-
tution ; and the other of which acts exercises in like manner a power not
delegated by the Constitution, but on the contrary expressly and positively
forbidden by one of the amendments thereto; a power which more than
any other ought to produce universal alarm, because it is levelled against
that right of freely examining public characters and measures, and of free
communication among the people thereon, which has ever been justly
deemed the only effectual guardian of every other right.
6. That this State having by its convention which ratified 'the federal
Constitution, expressly declared, "that among other essential rights, the
liberty of conscience and of the press cannot be cancelled, abridged, re-
strained, or modified by any authority of the United States," and from its
extreme anxiety to guard these rights from every possible attack of sophis-
try or, ambition, having with other States recommended an amendment for
that purpose, which amendment was in due time annexed to the Constitu-
tion, it would mark a reproachful inconsistency and criminal degeneracy,
if an indifference were now shown to the most palpable violation of one of
the rights thus declared and secured, and to the establishment of a prece-
dent which may be fatal to the other.
7. That the good people of this commonwealth having ever felt v and
continuing to feel the most sincere affection to their brethren of the other
States, the truest anxiety for establishing and perpetuating the union of all,
and the most scrupulous fidelity to that (Constitution which is the pledge of
mutual friendship, and the instrument of mutual happiness, the General
Assembly doth solemnly appeal to the like dispositions of the other States,
in confidence that they will concur with this commonwealth in declaring,
as it does hereby declare, that the acts aforesaid are unconstitutional, and
that the necessary and proper measure will be taken by each, for co-ope-
rating with this State in maintaining unimpaired the authorities, rights,
and liberties reserved to the States respectively, or to the people.
8. That the Governor be desired to transmit a copy of the foregoing
resolutions to the executive authority of each of the other States, with a
request that the same may be communicated to the legislature thereof.
And that a copy be furnished to each of the senators and representatives
representing this state in the Congress of the United States.
(gr The original resolutions offered by Mr. John Taylor to the House
of Delegates may be seen, post, p. 148.
24 DEBATE ON VIRGINIA RESOLUTIONS.
DEBATE IN THE HOUSE OF DELEGATES ON THE
FOREGOING RESOLUTIONS.
Thursday, December 13, 1798.
The House resolved itself into a committee of the whole House, on the
state of the commonwealth, Mr. Brackenridge in'the chair; when the reso-
lutions presented to the House by Mr. John Taylor, and referred to the com-
mittee, being taken up for its consideration
Mr. JOHN TAYLOR began, by expressing great regret at the occasion
which brought him forward. He conceived it to be an awful one. That
liberty was in danger, and as that rested on the foundation of responsibility,
every effort should be made to repel attempts to subvert it. He could as-
sure them, that his feeble efforts should be used for that purpose. He said
that two subjects were contemplated by the resolutions before them, to
which he should chiefly confine his observations. He^should consider the^
, ' constitutionality of the laws referred to in the resolutions, and their cor-
respondence with human rights, natural and civil. He compared the ex
ecutive of Great Britain with the (Jongress of the United States. The
prerogatives of the first were limited and defined by the constitution of
England, as were the powers of the latter by the Constitution of the United
States ; and if the king at any time overleaped his boundaries, it was
always certainly opposed, and met with correction. He stated the case of
ship-money imposed by Charles I. What was the consequence of that
measure? It was opposed. He applied that case to the Congress of the
United States. The powers of Congress, by the Constitution, were defined,
as clearly as were those prerogatives. That, in Great Britain, where the
prerogatives were limited, wherever the executive overleaped their bounds,
other organized bodies would always control and check it. So, if Con-
gress overleaped their bounds, some organized body should certainly op-
pose it. Concluding the general government to be limited in its powers,
he proceeded to inquire if Congress, in passing the alien and sedition laws.
had overleaped its bounds. He mentioned a law, which Congress had
passed at the same session, respecting alien enemies, as it had been sug-
gested that the one particularly called the alien law was justifiable on ac-
count of danger to be apprehended from foreigners. This alien enemy
law passed by Congress, as well as a law of Virginia, upon that subject,
were made in favour of aliens. They were necessary, and found to be
the usage of all nations. A contrary usage would be cruel and inhuman.
Such laws as these were attended with mutual advantages to the nations
at war. They constituted a mutual assurance that the persons and pro-
perty of its own citizens would be safe in the country of the other. This
i was not the object of the law in contemplation. The other laws were suf-
ficient for every purpose. That aliens, when arrested and made prisoners,
were not dangerous. He said he would ask the question whether alien
friends possessed any rights. If so, they might be secured by the Consti-
tution. Then, if they were infringed, the Constitution was broken. If
Congress could infringe the rights of those people, they might infringe the
DEBATE ON VIRGINIA. RESOLUTIONS. 25
rights of others. One usurpation begat another. We ourselves might as
well be the victims as others. He said, that alien friends, by the common
law, had the rights of life, liberty, and property; and that these common
law rights were secured by the Constitution ; to prove which, he quoted
that clause of the Constitution by which those rights are secured, which
Constitution literally reached aliens, by using in all places the term "per-
sons," not " natives." He then put the case of our population being in-
creased by a considerable emigration of foreigners to this country, who
might be disposed to retain their foreign citizenship : we should then have
amongst us a body of men, of whom the President would be the despot :
they would be entirely in his power. He further observed that, suppose
government (never an enemy to power) should strengthen its hands by
corruption, by patronage, by standing armies, by a system of fears, (he
would not say that our government had done so, but in case a government
should do so,) that in such case, this body of emigrants, thus dependent upon
government, would be a proper instrument in the hands of the executive,
to effect its purposes : that executive power was the greatest enemy which
republican principles had. He asked, if any one would then assert that
to strengthen executive power in this way, wholly unforeseen by those
who formed the Constitution, so as to extend beyond their intention, could
be agreeable to the Constitution : that republican principles were the great
end of the Constitution. Then, if he had proved this law inimical to those
principles, he said that he had attained the great end at which he aimed.
He next observed, that the Constitution cautiously attempted to distribute
its powers. It was nothing more than a deed of trust made by the people
to the government. The government, then, had no right to outstrip
its powers. Were they not defined ? Had the Constitution given any
power to deprive any person of trial by jury? That if once we were to
permit executive power to overleap its limits, where was it to stop? And.
if the executive branch exercised powers not bestowed, it overleaped the
Constitution. He asked if we had arrived to that situation, that the powers
which the people possessed were to be surrendered. Were we approach-
ing the system k of Divine right. He proceeded to construe the alien law,
and said that the precedent established by it was dangerous, both as it af-
fected individuals, and as it affected states. That a power inclined to usur-
pation, to the injury of aliens, would be inclined to usurp, in the construc-
tion of the Constitution, to the injury of states ; and that the precedent in
the one case, would soon ripen into a law, for justifying the other.
He next read the sedition law, and proceeded to comment upon the
words of it, especially the words counsel or advise. He asked how he
could counsel or advise another, without speaking to him ; consequently
these words extended to words spoken. He put the case of his counselling
his neighbour to withstand the two laws of Congress before mentioned.
That, by the construction of the last-mentioned law, words were reached,
and duties prevented : so that, if he should advise his neighbour in regard
to those laws, ihe latter one enacted a punishment. He then asked, what
was the case of a representative in State Legislatures. He had taken an
oath to oppose unconstitutional laws. What was he to do? On one hand
was perjury, on the other a prison. Suppose a law were to infringe the
26 DEBATE ON VIRGINIA RESOLUTIONS.
guarantee made by the Constitution, of a republican form of government.
What was a representative to do ? Was he not to withstand it ? If such
law should tend to destroy that guarantee, were we to wait until the ene-
my's detachments closed us in on every side 1 This sedition law said yes.
In the construction of this law we were placed in the hands of lawyers.
The judge would construe the law. There were two kinds of construc-
tion, a strict construction, and a liberal construction. The judge might
put upon it a liberal construction. He stated an historical fact. That
sedition was forbidden by the common law. That the law of England
respecting treason, went no farther in describing that offence, than our
law does in describing sedition. He then cited the case of Algernon
Sidney, That Algernon Sidney wrote a book in answer to Filmer, to
prove "that the authority of kings was not of divine original (a thing in
those days deemed necessary to be proved). He wished a necessity might
never appear for a new edition of this book. For this he was prosecuted
and tried, condemned and executed. And this was a liberal construction
of the law. He thought that this case might well be applied in an argu-
ment on the subject of this law of ours. However, the law was said to be
harmless. That to bring themselves within it, men must unlawfully com-
bine, they must conspire, they must lie, for that they might still tell truth
without clanger. But this could never satisfy him that it was not danger-
ous, when he recollected that the best patriots had been sacrificed by se-
dition laws, with the help of construction.
He then said that another distinction had been set up, that this law was
not to restrain the freedom, but the licentiousness of speech. This, he
observed, was an epithet which might be applied to any attempt to restrain
usurpation. Men find no difficulty in pronouncing opinions to be both
false and licentious, which differ from their own. That this same distinc-
tion (if it was just) would empower Congress to regulate religion, the free-
dom of which is secured by the same article which secures the freedom of
speech. They might in the end be induced to regulate the mode of peti-
tioning, that it might be performed orderly, and not licentiously, as it is in
some countries, by crawling on the belly towards a throne, and licking the
dust. He then observed, that a power to restrain treason, was more ne-
cessary in a government, than to regulate sedition : that our Constitution
had yet limited the power over treason to a few cases, which he stated.
However, Congress might still regulate the punishment in case of treason ;
and it was possible, that they might establish in such case a punishment
short of death ; a punishment even inferior to that for sedition. What then
would result? Treason was the genus; sedition a species. If the first
were limited, and the second not, what security had we 1 He then read
the third article of the amendments to the Constitution, concerning free-
dom of speech, &c., and asked in what sense this clause was understood
at the time of adoption ? Could it then have been contemplated by any
one, that such a law as this would ever have been passed ? The adoption
of the Constitution by this state was accompanied by a condition contain-
ing a reservation of these very rights : so that they must have been un-
derstood in a very different sense then, than when these laws of Congress
passed. He read the ratification of the Constitution by the convention of
DEBATE ON VIRGINIA RESOLUTIONS, 27
this state, and said that the same ought to be looked upon as a contem-
poraneous exposition of the part of the Constitution referred to. He then
asked, if the sedition law did in no respect cancel, restrain, or infringe the
liberty of the press ! And concluded his observations upon the first of the
two subjects, to which he had before mentioned he should confine them,
by saying that, if he had proved the laws spoken of to be unconstitutional,
the objection to them on that ground was strong ; and by asking further,
could they then be justified upon the ground of necessity, or that they
were harmless?
He began his observations upon the second subject, by asking if those
laws were correspondent with human rights 1 Those rights, he said, were,
freedom of speech, freedom of person, a right to justice, and to a fair trial.
If an alien possessed those rights, he asked, could he avail himself of
them under the present law ? Could a citizen, under the sedition law, ex-
ercise the freedom of speech, or of religion, which last, a few days before,
he had heard called a social right? It was not so. It was either a na-
tural duty,- or a natural right. Was it possible that at this day, religious
worship could be restrained by law ? The right of opinion, he said, should
be held sacred. It ought never to be given up in any one instance. Re-
ligion was only a branch of opinion. With what propriety could that range
of thought, bestowed by the Creator upon the human mind, be controlled
by law. He deemed it a sacrilege for government to undertake to regu-
late the mind of man. It was a subject by no means within its powers.
What would be the consequence of such a measure? Universal ignorance
amongst the people. He then asked, if ignorance was a desirable thing?
And were the free exercise of the faculties of the human mind, to be once
restrained and shut up, he wou]^ ask them, then, what was man ? He was
therefore opposed to those laws, as being destructive of the most essential
human rights. He again asked, if such laws were ever contemplated at
the time of the adoption of the Constitution, and what would be the con-
sequence of the destruction of those essential human rights, of which he
had spoken ? What would be the probable effects of .those laws ? They
would establish executive influence, and executive influence would produce
a revolution. There was great danger in throwing too great weight? in
any one scale. He then proceeded to inquire whether those laws would
increase executive. influence, and concluded that they would. That they
would by begetting fear. If public opinion were to be directed by govern-
ment, by means of fines, penalties and punishments, on the one hand, and
patronage on the other, public opinion itself would be made the stepping
stone for usurpation. If Congress should undertake to regulate public
opinion, they would be sure to regulate it so as to detach the people from
the stare governments, and attach them to the general government. But,
he said, the most dangerous effect of those laws would be, the abolition
of the right to examine public servants. He again referred to Sidney's
case, and recited the doctrine of Filmer, to illustrate this subject. To
bring about such a measure as this, he said, it would be necessary for
Congress, in the first place, to establish the point, that they were the mas-
ters, and not the servants, of the people. He said, government might do
wrong. Could a criminal be ever brought to justice, who had a power to
28 DEBATE ON VIRGINIA RESOLUTIONS.
regulate the mode of his own examination ? And is it not criminal in a
government to oppress a people ? If its acts were wrong, they would pro-
duce discontent: discontent was the only road to redress. But redress
could never be obtained, because the sedition law prohibited the only mode
of obtaining it, by punishing that very matter of exciting discontent. He
asked what was despotism ? He defined it to be, a concentration of powers
in one man, or in a body of men. The manner of concentrating them
was unimportant : the end was the same. Individuals and states were
equally affected by such concentration of power. The concentration of
it in an individual, would enslave other individuals ; a concentration of it
in Congress, would operate to the destruction of the state governments ;
and that, if the balance of power which the state" governments ought to
hold against Congress, were once lost, we must be precipitated into a revo-
lution. He adverted to the vast power concentrated in the Senate of the
United States. This had been seriously viewed at the time of the adop-
tion of the Constitution, and since. That, at the time of framing the
Constitution, mutual concessions were made between the states, which he
believed to be the sole reason for admitting the small states to an equal
share of power in that body, with the large, the real counterbalance of
which concession, was the existence of state governments. Thence he
concluded, that being thus situated, if the balance which the states ought
to hold, should happen to be lost, the small Senate of the United States,
might govern America. He further said, that although he had read in
pamphlets and newspapers, and also had heard it reported, that such prin-
ciples as he held, led to commotion, still he would assert that it was more
likely to happen that a majority of small states might adopt measures
which would oppress the rest, although they should contain the greatest
number of citizens : and that the result ofthis would be a civil war. The
many would not submit to the few, and all history would show, that a
majority armed with power, would never yield it without a struggle. He
said thet oppression was the road to civil war. To prove which, he
asked what produced the war between Britain and America? Oppression.
What produced the revolution of France? Oppression. What produced
the revolt of the United Provinces from Spain? Oppression. He said,
the way to keep a nation quiet, was to make it happy : that oppression
goaded it on to civil war. In justification of which opinion, he stated that
the people of the United States were at this time under the pressure of
certain grievances. The way then to stop civil war, would be to stop op-
pression. But, said gentlemen, we must not disunite. To this he would
answer, remove oppression, and union would take place. He had ob-
served it asserted in a pamphlet circulated at this place, that these late
measures of the government might be justified on the ground of self-de-
fence. Under such a pretence as that, he said, Congress might pass any
law whatever. This never could have been the object of the Constitution.
He said, that the old instrument of confederation contained the same lan-
guage, but no such power as that contended for was ever claimed. Had
it ever possessed it, its want of energy would not have suggested the pre-
sent Constitution. (He then read the preamble of the articles of confede-
ration, reciting that the same was entered into for the public good, &c.)
DEBATE ON VIRGINIA RESOLUTIONS. 29
By adopting a different construction from that made by himself, he said
the propriety of no law which Congress should ever pass could be denied.
He then concluded by saying, that our rights were the offspring of pangs
and peril. Let them never then be wrested from us. It was the custom
in some countries, for the prince to send for the first born child of every
subject, to have him trained as a soldier for his army. In that case, could
the distressed parent be assured that by surrendering his first-born, he
would secure the rest ? The first-born of American rights, was the free
examination of public servants. Were we to surrender that, could we be
certain that the rest would be secured ? .That these rights were the fruit
of victory, and recompense of blood. We had defended them against the
arms of Britain. Never then let us surrender them to the arts of sophistry
and ambition.
Mr. George K. Taylor moved that the committee might rise, in order
to give time to himself and the other members to consider well the subject
before them. He said, it was an important one, as the object of inquiry
seemed to be, to impeach with unconstitutionality, two laws passed by
both Houses of Congress, and by them declared to be constitutional. *
Mr. Foushee made a few remarks in opposition to those of Mr. George
K. Taylor in regard to the probable constitutionality of the laws, by rea-
son of their having passed both Houses of Congress.
Mr. Nicholas hoped that the gentleman from Prince George did not
intend, by moving to rise, to preclude from speaking any person then dis-
posed to speak.
Mr. George K. Taylor said that he did not ; but (after waiting some
time and no member rising to speak) he renewed his motion for the* com-
mittee's rising.
The committee rose accordingly, reported progress, and had leave to
sit again.
IN THE HOUSE OF DELEGATES,
Friday, December 14, 1798.
The House resolved itself into a committee of the whole House, on the
state of the Commonwealth, Mr. Brackenridge in the chair, when, Mr.
John Taylor's resolutions being still under consideration, Mr. MagiU said,
if he were in order, he would move that the resolutions should be read.
The chairman declared the same to be in order, and the resolutions
were read accordingly by the clerk. Whereupon,
Mr. GEORGE K. TAYLOR arose, and said that he never felt himself im-
pressed with more awe than on that occasion. The subject was of itself
sufficiently momentous ; but the resolutions before them rendered it still
more so. They contained a declaration, not of opinion, but of fact.
They declared the acts of Congress, called the alien and sedition laws, to
30 DEBATE ON VIRGINIA RESOLUTIONS.
be unconstitutional, and not law. These laws, he said, had been passed
by both houses of Congress. One of those houses was formed of the
immediate representatives of the whole American people, the other of
members chosen by the state legislatures. These two houses thus formed,
and thus representing the whole people, and the respective state sovereign-
ties, had passed those laws after solemn deliberation and discussion, and
declared them to be constitutional. In such case, he conceived, the Legis-
lature of Virginia, the representative of a part only of the American
people, ought to deliberate seriously before they undertook to give an
opinion upon them ; and if their opinion should be such as the resolutions
stated, they should still endeavour to couch that opinion in different
language; for, by those resolutions, as they then stood, the people were
encouraged most openly to make resistance. He compared the two legis-
lative bodies, Congress and the Assembly of Virginia, together. He pre-
sumed the former to be as wise, as watchful of the public interests, as the
latter. He then called the attention of the committee to what had been
the determination of the legislatures of the other states. All which had
taken these laws under their consideration, had given them their decided
approbation, either by way of resolution, or address to the President. It
could not be denied but that they had some wisdom, and that it was not
exclusively confined to the Legislature of Virginia. As the legislatures
then, of so many states, had concurred in the approbation of them, he
thought it necessary for the Legislature of this state to hesitate in ex-
pressing its opinion of their unconstitutionality, especially when they re-
flected on the consequence attending it. For if these laws were unconsti-
tutional, the resolutions made it the duty of the people to defend them-
selves against them. He said he would then proceed to show to the
committee, that those laws were not unconstitutional. In that attempt he
was not certain whether or not he should succeed. He possibly might
bring them to doubt, and should he do that, he should feel in some
measure satisfied. On the other hand, they might be assured that the
consequences of pursuing the advice of the resolutions, would be insurrec-
tion, confusion, and anarchy. The business upon which they were acting,
he said, was of an extensive nature. The gentleman from Caroline had
spoken upon both laws. He should confine himself to the alien law
only. He conceived that would be as much as he could perform. For
in doing that, he should fatigue himself, and he expected the committee
also.
He proceeded then to examine the situation of aliens coming into this
country. He said, they had no more rights here, than they had else-
where. He asked upon what footing aliens came into any country? By
right, or by permission? Still it was said, that their rights were to be
affected by this law of Congress. He then cited and read Vattel, page
157, section 94, to show that a nation may prohibit foreigners from
entering its territory ; and from that authority concluded, that their admis-
sion into a country was by no means a matter of right, but of favour.
He said, the alien did not come within the scope of the general laws of
the country into which he came. During his stay therein, he was to be
protected indeed by those laws ; but was not the object of them. He cited
DEBATE ON VIRGINIA RESOLUTIONS. 31
and read Vattel again, page 100, section 231, and Blackstone's Commen-
taries, vol. 1, page 259, to show that by the law of nations, it is left in
the power of all states to take such measures about the admission of
strangers as they think convenient : that so long as their nation continued
at peace with that in which they resided, and they behaved themselves
peaceably, they were under the protection of the government of that
nation, though liable to be sent or ordered away, whenever that govern-
ment saw occasion, or its safety required it. If there were nothing then,
he said, in the Constitution of the United States, respecting the migration
of persons, the doctrine of the law of nations which he had read, was
sound, and the general government might by that lawfully restrain or
regulate the entry of aliens, and order them away if necessary. But the
Constitution had a clause in it upon that subject, being the first clause of
the ninth section of the first article, which he read, in these words : "The
migration or importation of such persons as any of the slates now exist-
ing shall think proper to admit, shall not be prohibited by the Congress
prior to the year 1808 ; but a tax or duty may be imposed on such im-
portation, not exceeding ten dollars for each person." This clause then,
he said contained a recognition of the right of Congress to prohibit mi-
gration or importation after the year 1809. In his opinion too, the pro-
hibition of the right of Congress by that clause, extended only to such
states as were existing at the time of framing the Constitution ; which
showed that Congress of course might regulate the migration of persons
to such states as were established after that time ; and that was exempli-
fied by the prohibition by Congress of the admission of slaves into the
new states. The clause read, then, took away from Congress the right of
prohibiting migration within a limited time. But though the entry was
prevented, the question then recurred, was their removal when dangerous
prevented also? The question was of great importance. When these
states, he said, declared themselves independent, they entered into articles
of confederation. That was a system composed of one body : there was
no executive, no judiciary. By that system, that single body could enact
nothing binding on the people. It was consequently dependent on the
several states for the execution of all its measures. The old Congress
wished to establish a duty of five per centum only on goods imported, but
it could not be carried into effect by reason of the opposition of the states.
To obviate that mischief the Federal Convention was appointed, which
assembled and framed the present Constitution. That took from the
several states all matters of a general nature ; all matters relating to
foreign nations. It established legislative, executive, and judiciary
branches, which acted upon the several matters coming within their
respective spheres ; and it certainly intended that all matters of general
national concern should be confided exclusively to the general govern-
ment. There was a general consent of the people that such matters
should be vested in the general government, and taken from the states.
He then read the list of powers vested by the Constitution in the general
government. By the general law of nations, he said, the admission of
aliens into a country was altogether a matter of grace. They might
therefore be removedyby the government of the country, whenever it was,
32 DEBATE ON VIRGINIA RESOLUTIONS.
deemed necessary. If the general government, then, possessed not the
power of removal, one great mischief of a general nature, which it was
intended to remedy, would remain as before. The union would be depen-
dent upon sixteen sovereign and jealous states, for. carrying into effect
such a measure. Some of these states, too, might be on the verge of in-
surrection. An alien banished from one might be admitted into another,
which would protect him, and thereby the general welfare in that instance
defeated, and Congress laid at the mercy of the particular states. He asked
what was the situation of America and France at that time ? It was true
there was no declaration of war between them, but they were not at peace.
He enumerated their various acts of hostility towards us, and then asked
if there was no danger to be apprehended from aliens of that country.
He himself thought there was. He related also the numerous designs and
machinations which they had been contriving against us. He deemed it
therefore highly necessary that the general government, established for
general benefit and common protection, should possess the power of removing
them. But, if the law of Congress were to be construed unconstitutional , the
general government could not remove them. He read the observations
of Mr. Jefferson respecting the necessity of a government having the
powers of defence and protection ; also Mr. Madison's speech in the Con-
vention of Virginia to the same effect ; and applied them to the case in
question. It was true, he said, that the Constitution prohibited the general
government from preventing the migration of foreigners prior to the year
1808 : but at the same time, the principles of protection must induce a
belief that the Constitution did not intend or enact, that when here, they
should not be removed, however dangerous to the general weal. Still,
however, it was objected, that by the twelfth amendment to the Constitution
it was declared, that the powers not granted to Congress, were retained by
the people, or the states respectively. It was clear, he said, that even
without that amendment, no power could have been exercised by Congress,
which was not expressly given to it, or did not follow by necessary impli-
cation. The case, he said, was still the same. In regard to an express
grant, there could be no dispute ; and the doctrine of necessary implication
was proved by the Constitution, when in the last clause of the 8th section,
it grants to Congress the power " to make all laws which shall be neces-
sary and proper for carrying into execution the foregoing powers, and all
other powers vested by that Constitution in the government of the United
States, or in any department or officer thereof." From that clause, then,
he said, the power of Congress to pass the law in question, was clearly
sanctioned by necessary implication. All cases arising under the Consti-
tution could not be foreseen and enumerated : therefore, that clause was
inserted for the purpose of enabling Congress to carry into effect the powers
expressly given it by the Constitution. Whatever then necessarily flowed
from these express powers, were within the scope of Congress. He then
asked if there were anything in the Constitution, from which the law in
question could necessarily and properly proceed? To discover that, he
first proceeded to examine the preamble. That, he said, declared the Con-
stitution to be formed in order to form a more perfect union, establish justice,
insure domestic tranquillity, provide for the commor ^defence, promote the
33
general welfare, and secure the blessings of liberty to ourselves and our
posterity. The passage of an alien law then, he said, was justifiable
for the purpose of answering the four great ends last mentioned in the
preamble, which showed the object and intention of the Constitution.
But he said, there was something in it more positive. He called their
attention to that clause in the enumeration of the powers of Congress "to
define and punish piracies and felonies committed on the high seas, and
against the law of nations;" and said, that aliens came within it, since
for an alien to conspire against the peace of the nation, which permitted
him a residence therein, was an offence against the law of nations. He
further read the clause declaring that the United States would guarantee
to the several states a republican form of government, and protect each of
them against invasion. He relied much upon the term protect used in
that clause. Protection, he said, was a preventing, a guarding against.
He would compare it to a shield, which an individual cast before him to
protect himself against the javelin before it reached him ; for it would be
no protection, if*he waited till the wound was inflicted. He observed, that
whatever flowed from a grant, followed the grant itself. Congress, there-
fore, in protecting the states, might enact cautionary laws for the purpose.
A law sending away dangerous aliens was a cautionary law, tending to
protect the states. Every society had as much right to prevent the mis-
chief which aliens might do, as to punish them for it after it was done.
Aliens might be punished for crimes as well as citizens. So, laws might
be passed for preventing the commission of crimes by them, as well as for
preventing the commission of them by cit/zens. But such a law must
always be temporary. It could not be permanent. It would continue
only so long as danger existed. It would a/fect only dangerous persons.
Aliens could only be dangerous in time of war, or in times verging towards
war. In times of safety, such a law would be unnecessary and improper.
He agreed, therefore, that a permanent law of that kind including all aliens^
passed before 1808, would be unconstitutional ; since it might absolutely
defeat the 9th section. Bui that a temporary law passed only for the pur-
pose of ordering away dangerous aliens, was a law of protection to the
states. It was a necessary power for every government to possess. A
government would be worth nothing without it, since it could not protect
the people. He th^n proceeded to take the Constitution altogether, reca-
pitulated the several clauses before cited, and said it was a rule of con-
struction of all instruments, that all the parts should be taken and con-
sidered together, that they might stand together, and 'be reconciled with
one another if possible. He called their attention to two clauses of the
Constitution, the ninth section of the first article reserving to the states the
right of permitting migration, &c., and the fourth section of the fourth
article, which declares that the United States shall protect each state
against invasion. When one part, then, of the Constitution, he said,
reserved to the states the right of permitting migration, and another
granted to Congress the power and duty of passing all such laws as would
protect the states from invasion or violence, would not the same operate
as a proviso qualifying the former general expression, and allow Congress
from principles of protection, to expel dangerous aliens ? He thought at
34 DEBATE ON VIRGINIA RESOLUTIONS.
any rate the power in that case contended for, a necessary one, even were
it not in the Constitution. And in such a case, the legislature ought to
recommend an amendment to the Constitution for the purpose. Since the
adoption of the Constitution, he said, Congress had passed laws for erecting
forts in different parts of the United States. He asked what part of the
Constitution gave them that power ? They must derive it from the fourth
section of the fourth article only, the same being for the purpose of pro-
tection. There was a necessity for exercising this power at that time.
We had amongst us a number of dangerous Frenchmen. The chief
author however of tlje plots had sneaked off, as well as his associates. He
said he was happy to be clear of them. Since they were gone, that4aw
was no longer necessary : Congress might then properly repeal it. Yes,
he said, the incendiaries were gone. He congratulated America upon it.
He hoped they never might return. But an objection had been made that
the alien law had taken away from the poor alien the trial by jury. He
said that aliens were not a party to the compact, but citizens only. The
Constitution secured rights to citizens, and declared that they should not
be deprived of them, but by trial by jury. But, aliens not being a party
to the compact, were not bound by it to the performance of any particular
duty, no.r did it confer upon them any rights. He referred to Vattel again,
to show that by the law of nations, the admission of aliens into a country
was not a matter of right, but of favour ; and observed that ordering away
an alien, was not divesting him of any right, but withdrawing from him a
favour ; and that it was new doctrine that a favour could not be withdrawn,
but by trial by jury. He then observed that the alien law did not touch
life, liberty, or property ; but only directed the alien to be removed. If he
would not remove himself, however, when ordered away, but remained
obstinate, he might then be imprisoned. He read, and relied upon the
favourableness of that clause of the law which extended to the suspected
alien the right of proving to the Presidem that he was harmless. He still
asserted that the law of nations gave a power to the government to remove
aliens when dangerous ; and that, by the law in question, neither life,
liberty, or property was touched, except in cases O f contumely. He then
stated the case authorized by our municipal laws, respecting surety of the
peace; and asked, how did the trial by jury stand in that case? The
citizen, he said, was deprived of it, and that too in a free country. The
case of the alien then, was not harder. The trial by jury was dispensed
with in the case of the peace-breaker ; therefore, the same might be done
in the case of an alien. He said, that the terms upon which aliens were
admitted, were, their not intermeddling with the concerns of the nation.
Should they do so, and, upon being required to withdraw, continued obsti-
nate, they must be committed in the same manner as citizens who refused
to give surety of the peace.
Another objection had been made, that if they were sent out without
trial by jury, they might next be deprived of life and property without it.
This, he said, could not be done. An alien was entitled to them as natural
rights,- and therefore, as they were rights, could not be deprived of them
without a trial by jury. The case was quite different in regard to his
removal, as his admission into the country was not matter of right, but
ON VIRGINIA RESOLUTIONS. 35
Was merely a matter of favour. It had been also objected, that the three
powers of government were all blended in the President by the alien law,
He said that ^hey were not. But, if such a power in regard to aliens were
necessary, it must be entrusted somewhere. It could not be with a private
individual. It could not be with the judiciary. It could not be with the
legislature ; but might most properly be with the executive. He, by the
Constitution, was bound to execute the laws : therefore, it was most pro-
perly entrusted with him, being the executive officer, with whom all per-
sons and bodies whatever were accustomed to communicate. It could
least of all be entrusted with a court which transacted its business pub-
licly. For these matters must be in confidence. That was often neces-
sary for nipping things in the bud. Secrecy then being absolutely neces-
sary, and a court of law being publicly held, and at stated periods, the
proceedings might be divulged, or the explosion take place, before they
could obtain information, or try the ftlct. And all that too, not for the
sake of a matter of right, but mere courtesy. It could not be entrusted
to the legislature, unless its sittings were permanent : it could, then, only
be entrusted with the president. To prove the justice and fairness of this
regulation, he again introduced the case of a man brought before a magis-
trate to give surety of the peace. On the complaint of 'A., he said, the
magistrate might arrest and imprison B., until he gave security to be of
good behaviour. In that case, a man was deprived of liberty without a
trial by jury ; but that was right, because society was bound to protect as
well as vindicate its citizens ; and before a trial of the fact could be had,
the person apprehending danger might be murdered. He again cited Mr.
Jefferson's piece to prove, that no cases under the law of nations were
ever submitted to a jury to be tried. He cited also part of a speech of
Mr. Madison, in the Convention of Virginia, nearly to the same effect ;
and thereupon observed, that the trial by jury was only used in municipal
regulations, where citizens and others were concerned under the particu-.
lar laws of the state, and not in cases between the government and aliens,
which arise under the law of nations. That even in matters of right, the
right of the individual ought to yield to the good of the community. He
then read that clause in the Constitution concerning the suspension of the
writ of habeas corpus, and said, that the suspension of that writ might
take place during the existence of rebellion or invasion. In that case, a
citizen might, at the will of the President, be committed and confined until
the existing danger was over. And if a citizen, invested with all civil
rights, might thus be confined in a time of danger, so ought an alien,
who had no positive political right .whatever, when the good of the com-
munity required it. He said, he might produce many other instances,
to prove the propriety of necessary implication. He then mentioned the
subject of foreign intercourse, and asked whence was that power derived ?
He knew no part of the Constitution which particularly authorized it. It
could be derived only from that clause of the Constitution, which pro-
hibited to the states the power of making any treaties, or entering into
any agreements. It. had been observed by the gentleman from Caroline,
that Congress had passed a law to send away alien enemies, and that was
a good law. Where was that power to be found T Nowhere, except it
36 DEBATE ON VIRGINIA RESOLUTIONS.
were derived from that protective power, which was to be gathered from
the Constitution by means of implication only, or by implication from the
power given to declare war. He further asked, at what time those laws
were passed, and what was the cause? And then observed, that whatever
construction led to an absurdity, was erroneous. He then supposed the
case of the states having the power of admitting aliens, and the General
Government not having the power of removing them. The Assembly of
Virginia might think a whole army of aliens admissible. Suppose, he
said, that Bonaparte and his army (if they could ever get out from me
Nile again) were to arrive within the state, and they should think them
too, admissible ; by the construction of the resolutions before them, Con-
gress in such case ought not to remove them. The right of protection,
he said, was a natural right, appertaining to each individual, and that a
number of individuals had as much right to protect themselves as one
individual. Did the Constitution prohibit such a right ? He then observed,
that both the Constitution of the United States, and of this state, directed
that the trial by jury should be held sacred. He said, he would then pro-
ceed to examine if that right had never been pretermitted by any law of
the state; and requested that the law of Virginia, for removal of aliens,
passed in 1792, should be first read. (It was read accordingly by the
clerk.) He then observed, that although the Constitution of the state
directed that the trial by jury should be held sacred, yet that law " autho-
rized the Governor to apprehend, and secure, and compel to depart out of
the commonwealth, all suspicious persons, &c.,/rom whom the President
of the United States should apprehend hostile designs against the said
states" In that instance, then, a previous legislature had acknowledged
as a matter indisputable, what this legislature disputed, that a suspicious
alien might be sent away at the instance of the President. Their law
even authorized the sending away the alien without a trial, and in the
mean time his being imprisoned. Yet that legislature, in passing that
law, did not suppose it had viqlated the Constitution. He then read the
act of Congress under consideration. He compared both acts together,
and said that he looked upon them to be nearly the same. If there were
any difference between them, he said it was, x that the law of the state was
more severe than the law of Congress, inasmuch as the former subjected
the alien to imprisonment at all events: the latter only in case of his
refusal to remove himself. It was remarkable, too, he said, that the same
law of the state, although passed in 1792, was re-enacted from one passed
in 1785, thirteen years ago, and so many years nearer than the present
time to the Revolution, when it is to be supposed the principles of that
Revolution were much purer than they were at the present time. He then
contended that there was the same reservation to the people of all powers
not granted to the state government, as was to the states of all powers
not granted to the General Government. Consequently, the trial by jury
being declared sacred by the bill of rights, the legislature of the state
could have no more power by the Constitution to pass such a law, than
Congress had by the Constitution of the United States. Yet no complaint
against such a law had ever been heard until the law of Congress was
passed. All the clamour had been reserved for that alone. He again
DEBATE ON VIRGINIA RESOLUTIONS* 37
observed, that no other state legislature had passed any such resolution
as the one before them. They must be presumed to be equally watchful :
they must be presumed to have wisdom too, and that it was not exclu-
sively confined to this legislature. They should hesitate, therefore, in
making such a declaration as was then contemplated. He then called for
the reading of the law of the state, which authorized the delivering up a
citizen committing a crime in a foreign country, at the instance he said of
the United States, without trial by jury, on mere suspicion and on demand.
(The clerk read the law.) <Mr. Taylor then called 'the attention of the
committee to the last clause of the law, from which it appeared that the
offender might be tried by a jury for the offence in this state, but was
deprived of such a trial by the fourth section, where he was delivered up
to a foreign nation on requisition. He ascribed the reason for dispensing
with the trial by jury, in the latter case, to be, because it was a case
within the law of nations, which admits no trial by jury, and still that
law was thought not incompatible with the Constitution. He observed
that the gentleman from Caroline had dilated much upon the probable
effects of the law of Congress in question. He would indulge himself in
the same manner.
What, said he, would be the situation of this country, were it once
known that Congress had no such power as that of removing aliens ? He
begged them to recollect what horrid scenes of devastation and carnage
had been exhibited by Frenchmen in their own island of Saint Domingo.
If France would abandon her people there, and desolate the fairest colony
in the world, could it be supposed, that they would love us more than
themselves : that they would spare their foes. He begged them to recol-
lect too, the doubtful state of affairs between our country and France. It
was true that the two nations were not at war, since no declaration of
war had been on either side, but they were not at peace, since each party
was seizing the vessels of the other. War then might ensue, and at the
time the alien law was passed, it was a thing extremely probable. Every
nation, before it struck, prepared as deadly a blow as possible. He then
asked if the French could wound us in any respect so vitally, as by arm-
ing the slave against his master. Attempts, he said, had been already
made, by French emigrants, to excite our slaves to insurrection. Suppose
then, they were to attempt the thing again, and an insurrection should
accordingly take place, what would be the consequence? In that com-
mon calamity, he said, the ranks of society would be confounded ; the
ties of nature would be cut asunder; the inexorable and blood-thirsty
negro would be careless of the father's groans, the tears of the mother,
and the lamentations of the children. The loudest in their waitings would
be their wives and daughters torn from their arms, with naked bosoms,
outstretched hands, and dishevelled hair, to gratify the brutal passion of a
ruthless negro, who would the next moment murder the object of his lust.
He then asked how all that was to be prevented ? By vesting the general
government with that power to remove such aliens, which it had already
so generously exercised for the purpose, in the law then under considera-
tion : a law particularly calculated for the protection of the southern states.
He then mentioned what success the French had had, in other countries
38 DEBATE ON VIRGINIA RESOLUTIONS.
into which their emigrants had been admitted. What intrigues they had
carried on in Venice, Switzerland, Holland, &c., all which countries had
been expunged from the list of republics, and added to the already over-
grown dominions of France. These events, he said, had been brought
about chiefly by stirring up the people to discontent, by alien incendiaries.
It was necessary then, that the United States should adopt proper measures
to prevent such mischiefs. To that end, said he, let us cherish the law
passed for the purpose. He then proceeded to relate the late conduct of the
French towards us, and what description of< persons had migrated from
that country to the United States, the most noted characters of whom
were Volney and Talleyrand. He made several remarks upon the con-
duct of both of them while in this country, but gave a particular account
of the peregrination of the latter from Europe to America, thence back
again to Europe: how he was denounced and proscribed by his country-
men, restored to favour again, and in the end preferred to the ministerial
office which he then held. It behoved the people of this country, there-
fore, to be on their guard against him and all the rest. He wished, he
said, to conclude ; for he was conscious that he had fatigued himself,
and he supposed the committee also. He should be glad, however, to be
permitted at some other time to deliver his sentiments in regard to the
sedition law. He thought indeed, that the best way thereafter would be
to discuss one law at a time. He further observed, that the members of
that Congress which had passed those laws, had been, as far as he could
understand, since generally re-elected : therefore, he thought the people of
the United States had decided in favour of their constitutionality, and that
such an attempt as they were then making to induce Congress to repeal
the laws, would be utterly nugatory.
MR. RUFFIN arose next, and said that he was convinced his abilities would
not enable him to place the subject in such a light as it would be placed
before it was finished. However, as it was a matter of much importance,
he was induced to assign his reasons for the vote which he was about to
give. He should confine himself, he said, to two points : the constitu-
tionality of the laws, and the consequences. The alien law, he said, was
unconstitutional in two points : and, after observing that, although an alien
did not enjoy all the rights of a citizen, yet he enjoyed some, he proceeded
to show in what points that law was unconstitutional. He thought it so
for two reasons: 1st. Because it blended several powers in one person;
and 2dly. Because it contained powers not granted to Congress by the
Constitution. He then proceeded to state how the alien was to be deprived
of the trial by jury, and to be banished for particular acts, at the time of
their commission, innocent, but which might, by a retrospective operation
of the said act, (the President being thereby armed with legislative and
judicial, as well as executive power,) be made' criminal. The gentleman
from Prince George, he said, had admitted that if Congress were to pass
a law to exclude all aliens for ever, prior to the year 1808, it would be
unconstitutional. Mr. Rujfin then begged leave to inquire as to the diffe-
rence of the effect which such a law would have from the present alien
act of Congress, should Congress annually think proper to re-enact the
DEBATE ON VIRGINIA RESOLUTIONS. 39
law as it now stood, until 1808. The principle and effect, he said, were
the same. The only rational conclusion, then, to be drawn from the con-
cession of the gentleman was, that if Congress be incompetent to the pas-
sage of a permanent law, (except, indeed, where the Constitution interposes,)
they must be incompetent to the passage of a temporary one. But the gentle-
man, he said, had attempted to prove the constitutionality of that act, by
saying that Congress had passed, or might pass, laws respecting alien
enemies. The cases, however, Mr. Ruffin said, were extremely different.
Congress alone could determine upon war or peace : consequently, alien
enemies were proper subjects for congressional legislation : but that alien
friends were exclusively subject to the sovereignty of the several individual
states ; as the twelfth article of the amendments to the Federal Constitution
expressly declares, that " the powers riot delegated to the United States,
by the Constitution, nor prohibited by it to the states, are reserved to the '
states respectively, or to the people." And as at the same time, he said,
the only power given by that compact to the general government, over
alien friends, was in the ninth section of the first article, it must follow
that this was one of the rights reserved to the states. The gentleman last
up, he said, had contended however, that this power was rightfully exer-
cised by Congress, and had taken the broad ground of construction and
implication, upon which to erect his fabric. Construction and implication,
Mr. Ruffin said, was a doctrine which he had hoped was banished from
the councils of America. It was a doctrine which the people of America
had unanimously and uniformly protested against. It was the exercise of
this kind of right by the British parliament which involved us in a war
with that government. It was to guard against the exercise of such a power,
that the state constitutions were formed : and it was that abhorrence in
America to constructive and implied rights, that induced the specific de-
lineation of congressional powers. Let them admit, he said, the position
of the worthy member, and then mark the extent to which it would carry
them. In the preamble to the Constitution, the ends designed to be pro-
duced by that compact, are enumerated. Amongst them the following :
" to provide for 'the common defence, promote the general welfare :" and
in the eighteenth clause of the eighth section of the first article, " to make
all laws which shall be necessary and proper for carrying into execution
the foregoing powers, &c.," were the parts of the Constitution, by which
it was contended, that those constructive and implied rights are given :
Suppose, said Mr. Ruffin, the general government should be of opinion
that those objects would be produced in a higher degree by continuing
the present members in office for ten years, or for life ? Was there any
person who then heard him, who would think such an exercise of power
legitimate 1 Certainly not. Yet he contended that such a power was as
impliedly given by the Constitution, as that which Congress had taken
upon itself to exercise over alien friends. Mr. Ruffin then concluded by
observing, that as it was then late, and the committee appeared ,to be
fatigued, he should reserve the rest of his observations for another oppor-
tunity.
The committee then rose, reported progress, asked and had leave to sit
again.
40 DEBATE ON VIRGINIA RESOLUTIONS.
IN THE HOUSE OF DELEGATES,
Saturday, December 15, 1798.
The House resolved itself into a committee of the whole House, on the
state of the commonwealth, Mr. Brackenridge in the chair, when Mr. John
Taylors resolutions being still under consideration,
MR. MERCER arose and said, that he felt great difficulty in prevailing
upon himself to take a part in the very interesting discussion which had
arisen, and would probably be continued, upon the resolutions submitted
to the committee. This difficulty was produced, not by any want of con-
fidence in the rectitude of the opinion which he entertained, or in the
purity of the motives that would ultimately direct his vote. On the one
hand, he was deeply impressed with the importance of the subject ; on the
other, he felt and acknowledged his own inability to do justice to its
merits; but, in proportion to the magnitude of the question, was his solici-
tude to explain the principles upon which his opinion was formed. The
manner in which the laws complained of had been defended here, and else-
where, was to his mind more alarming than the laws themselves. It
showed that gentlemen were ready to defend, not only existing violations
of the federal Constitution, but any infractions which might hereafter be
committed upon it. For, if the opinions which the gentleman from Prince
George submitted to the committee yesterday, be correct, the nature of
that Constitution was changed. It was not what the people and states under-
stood it to be at the time of its ratification. Its powers were enlarged to a
dangerous extent. It could no longer be considered as producing a con-
federation, but certainly established a consolidated government.
Every question, Mr. Mercer said, which related to the respective powers
of the state and general government, was, in itself, of magnitude sufficient
to engage the whole attention of gentlemen who were desirous of preserving
to each its proper powers, and to maintain that entire independence which
belongs to each, and which each had a right to enjoy. He was, therefore,
surprised, when he heard the member from Prince George, yesterday,
calling the attention of the committee to subjects, which, however inte-
resting in themselves, could not be supposed to have the most remote
connexion with the resolutions upon the table. Those, said Mr. Mercer,
embrace several constitutional questions, which ought to be considered by
themselves; they point out a plan by which the friends of the paper believe
a repeal of the supposed unconstitutional acts would be most readily ob-
tained. It was a solemn appeal to the understanding of the committee ;
yet, the injuries of France to America, her excesses in Europe, always
magnified and misrepresented by the enemies of freedom in every quarter
of the world, and the misfortunes of St. Domingo, had been pressed with
considerable force by that same gentleman. This effort, Mr. Mercer said,
had been practised with great effect in the community. It was scarcely
possible to consider the measures of our own government, and candidly to
DEBATE ON VIRGINIA. RESOLUTIONS. 41
examine their influence upon the public happiness, without being subject
to the imputation of an undue attachment to a foreign power. He rejoiced
in knowing, that as long as the charge had existed, and as often as it had
been repeated, not a single instance had been produced throughout Ame-
rica, by which it could be supported. It was used as the apology for a
system of measures which could not have been adopted, without receiving
the universal disapprobation of all who have a knowledge of the principles
of the federal Constitution, and of the clear limitation of power contained
in that instrument. For his part, he did not see how a view of the insults
offered to America by France, could decide the merit of the resolutions.
He hoped the committee were ready to repel the former, as well as to
consider the latter. To preserve the Constitution, was to preserve the
union ; and to maintain that, upon the principles upon which it was origi-
nally formed, was to bid defiance to every foreign power, whose conduct
might be hostile to the independence and rights of our country.
The gentleman from Prince George had told the committee that the
resolutions introduced by the gentleman from Caroline were calculated to
ronse the people to resistance, to excite the people of Virginia against the
could result from their adoption. They contained nothing more than the
federal government. Mr. Mercer did not see how such consequences
sentiments which the people in many parts of the state had expressed, and
which had been conveyed to the legislature in their memorials and reso-
lutions then lying upon the table. He would venture to say, that an
attention to the resolutions before the committee would prove that the
qualities attempted to be attached to them by the gentleman could not be
found. He begged leave to read the first and second clause, in which it
is declared, "that the General Assembly doth unequivocally express a firm
resolution to maintain and defend the Constitution of the United States,
and the constitution of this state ; and that they will support the govern-
ment of the United States in all measures warranted by the former,"
and to maintain the union, "it pledges all its powers." Language less
calculated to rouse resentment could not be used : nor were the resolutions
addressed to the people, and if they were, Mr. Mercer said they would not
have been objected to by him on that ground. If the people were not to be
confided in, we were wretched indeed. In whom were we to confide, if
not in the people? In their virtue and patriotism were all his hopes placed.
The history of government had been the history of crime and usurpation.
In the purity of administration he could not solely confide. The people
were the best, and the only defenders of their liberties; when they became
ignorant of the proceedings of their own governments; when public virtue
should cease to be their ruling principle, their liberties would experience
the same fate, which those of other nations had undergone : power would
stand in the place of the Constitution. He hoped no arguments derived
from the probable consequences upon the people of adopting the resolu-
tions, would prevent the judgment of the committee from being calmly
exercised upon them.
The right of the state government to interfere in the manner pro-
posed by the resolutions, Mr. Mercer contended, yvas clear to his mind.
He asked, what were the rights belonging to the state governments prior
42 DEBATE ON VIRGINIA RESOLUTIONS.
to the existence of the federal Constitution 1 They were those which be-
long to all sovereign and independent states. They were perfect and com-
plete. The federal Constitution derived its powers from the people and
the states, and could give none but what had been previously in the pos-
session of the states or the people, and by them delegated to the general
government. It would not be said, that all power was delegated to the
general government ; though it had indeed been improperly said, as he
should attempt to show before he took his seat, that the powers of the
federal government were general. He should attempt to show they were
special, and that none but what were specially delegated could be exer-
cised. It appeared to him, that, from the operation of the two separate
governments in the same community, there resulted three species of rights
to be exercised. There were rights which the " federal government y ;
could exclusively exercise, without any interference on the part of the
. state government ; there were rights which could be exercised by each
** government at the same time, anotKere were rights which belonged exclu-
sively to the state government."' The latter embraced all which had not
been delegated in the federal Constitution to the general government,*or
prohibited to the states by that instrument. That portion of power which
had been delegated to the federal government, did not affect the sovereignty
of the states" over the reserved rights ; that sovereignty continued entire;
and remained as to the reserved rights, what it had been with respect to
all the rights, before the federal Constitution. If the remaining rights are
sovereign, the states whose sovereignty is invaded by any act of the gene-
ral government have it as fully in their power to defend and protect these,
as they would have had to defend any of their rights if attacked by a fo-
reign power, before the general government had a being. The state be-
lieved some of its rights had been invaded by the late acts of the general
government, and proposed "a remedy whereby to obtain a repeal of them.
The plan contained in the resolutions appeared to Mr. Mercer the most
advisable. Force was not thought of by any one. The preservation of
the federal Constitution, the cement of the Union with its original powers,
was the object of the resolutions. The states were equally concerned, as
their rights had been equally invaded ; and nothing seemed more likely to
produce a temper in Congress for a repeal, than a declaration similar to
the one before the committee, made by a majority of states, or by several
of them. The states had the power of communicating together in pro-
ducing amendments to the federal Constitution. A proposition for this
purpose had been presented to the legislature, during the present session,
from the state of Massachusetts, and would be acted upon before their
adjournment. It appeared strange that the states might communicate to-
gether to amend the Constitution, and were not permitted to do so, in
order to protect the same when amended ; that they might communicate
together when they chose to give away their rights, but could not do it
when their reserved rights were invaded. The reverse of this Mr. Mercer
was happy in believing was true. The opinion contained in the resolu-
tions was coeval with the Constitution itself, and had been maintained by
the most enlightened commentary which had been produced in America
upon that instrument (he alluded to a collection of papers written under
DEBATE ON VIRGINIA RESOLUTIONS. 43
the signature of Publius, in the state of New York), when the Constitution
was under consideration, and generally known by the name of the Fede-
ralist. The union of talents exercised in the production of this work had
justly entitled it to the attention'of every American who is anxious to know
the true meaning of the federal Constitution, and the real intent of its
powers; and though some of its opinions may be erroneous, it was still
the best authority that could be produced. The time of its being written
was extremely favourable to the impartiality of its sentiments, as that vin-
dictive party spirit which had now so unhappily extended its baneful in-
fluence to almost every individual in the community, could not have affect-
ed its supposed authors, one of whose merits had so justly been resounded
a few days ago from every side of this house. This authority, when
speaking of the checks which the state governments would always have
upon the general government, and of the little probability of the latter en-
grossing powers unobserved, uses the following strong and decided lan-
guage: "If the majority (in the general government) should be really
disposed to exceed the proper limits, the community will be warned of the
danger, and will have an opportunity of taking measures to guard against
it. Independent of parties in the national legislature itself, as often as the
period of discussion arrived, the state legislatures, who will always be not
only vigilant, but suspicious and jealous guardians of the rights of the citi-
zens against encroachments from the federal government, will constantly
have their attention awake to the conduct of the national rulers, and will
be ready enough, if anything improper appears, to sound the alarm to the
people, and not only to be the voice, but, if necessary, the arm of their
discontent:" vol. 1st, page 166. Their sentiments embraced the plan pro-
posed in the resolutions.. They spoke a language much stronger than
any which these would be found to contain. We do not wish, said Mr.
Mercer, to be the arm of the people's discontent, but to use their voice.
The same authority has maintained the right of the states to interfere in
the manner expressed in the resolutions submitted to the committee, in
terms still more applicable. " It may safely be received as an axiom in
our political system, that the state governments will, in all possible con-
tingencies, afford complete security against invasion of the public liberty
by the national authority. Projects of usurpation cannot be masked under
pretences so likely to escape the penetration of select bodies of men, as of
the people at targe. The legislatures will have better means of informa-
tion. They can discover the danger at a distance ; and possessing all
the organs of civil power, and confidence of the people, they can at once
adopt a regular plan of opposition, in which they can combine all the re-
sources of the community. They can readily communicate with each
other in the different states ; and unite their common forces for the protec-
tion of their common liberty :" vol. 1st, page 176. Here, said Mr. Mercer,
we see the opinion of the resolutions so clearly admitted, as to be consi-
dered a "political axiom in our system" The right of two different
states " to communicate with each other," is here supported by the best
'defence which the federal Constitution ever received ; not only this right
is defended, but were the states to "adopt a regular plan of opposition, in
which they should combine all their resources," this authority, addressed
44 DEBATE ON VIRGINIA RESOLUTIONS.
to the people at the time the Constitution was under consideration, would
justify the measure. But no such wish was entertained by the friends of
the resolutions. Their object in addressing the states is to obtain a similar
declaration of opinion with respect to several late acts of the general go-
vernment, which seem to violate some of the most invaluable rights se-
cured by the charter of their own existence; and thereby to obtain a repeal
of measures unconstitutional in their nature, and hateful in their tendency;
measures so justly obnoxious to the people, that they would have found
few advocates, but for the vain pretence of their being necessary to defend
us against the attempts of France; measures that have divided the com-
munity at a moment when union of sentiment is ardently to be wished for
by every friend to the interest of his country.
The gentleman from Prince George had introduced the opinions of a
learned writer upon the law of nations, to prove which were the rights of
aliens. Though, Mr. Mercer did not believe this class of men stood, in a
foreign country, upon the narrow ground in which it was attempted to
place them, yet, he deemed it entirely unnecessary to inquire what was
the nature and extent of their rights ; he should contend that the federal
government possessed no power over aliens in time of peace; and, there-
fore, whatever power a sovereign state could exercise with respect to them,
under the general law of nations, that power belonged to the state, and
not to the general government ; the rights of sovereignty did not attach
to the federal government in all their extent: it was sovereign only with
respect to the rights which it could' exercise exclusively: it was limited in
its operation, and the boundaries of its authority clearly ascertained ;
unless, therefore, this power over aliens should be found vested in the
general government by the terms of the Constitution, he could not admit
it to be derived from implication, or from any general clause in that in-
strument. Implication would lead us into an endless discussion. The
plain sense and meaning of the Constitution should be our guide. In
some part of the gentleman's argument he admitted the limited powers of
the Constitution ; in others he certainly advanced opinions destructive
of that limitation. To show that the powers under the Constitution were
limited and special, Mr. Mercer , begged leave to refer to the Constitution
itself. In the eighth section and first article, there was found a special
enumeration of powers ; most of the^great powers of Congress were here
particularly denned. Those which they had a right to exercise, and which
were not in this section, were as clearly ascertained in other parts of the
instrument : why was this cautious enumeration of powers necessary, ex-
cept to keep Congress within the strict and literal meaning of the Consti-
tution, and to prevent the assumption of power under any general clause?
It was intended to prevent them from exercising any power, but what was
given. If opinions cotemporaneous with the original discussion of the
Constitution in Virginia, can serve us in ascertaining its true meaning,
(and they certainly ought,) he would refer gentlemen to the debates in the
Convention of this state. The opponents of the Constitution were appre-
hensive, that by implication, or some general phrases, Congress might
assume powers not intended to be conveyed. The advocates of that paper
declared, in every day's debate, that these apprehensions were, without
DEBATE ON VIBGINIA RESOLUTIONS. 45
foundation : that the language was so clear, and its powers so well de-
fined, that none could be exercised under it by implication, or that was
not found upon its face. Though the evidence of every member who
wished the Constitution ratified, might be produced upon this subject, he
would mention the opinions of only two gentlemen belonging to that body.
" Mr. John Marshall asked if gentlemen were serious when they asserted
that if the state governments had power to interfere with the militia, it was
by implication. If they were, he asked the committee whether the least
attention would not show they were mistaken: each government was to
act according to the pmvers given it. Would any gentleman deny this?
He demanded if powers not given were retained by implication? Could
any man say so ? Could any man say, that this power was not retained
by the states, as iliey had not given it away? For, does not a power re-
main till it is given away ? The state legislatures had power to command
and govern their militia before, and have it still, undeniably, unless there
be something in this Constitution that takes it away" Though .the
limited powers of the Constitution were in this opinion insisted on, there
was still higher authority. It was the instrument of ratification adopted
in the Convention of Virginia, which had been mentioned by the gentle-
man from Caroline. It contained the opinion of the Convention, and de-
clares, " that every power not granted, remains with the people and at their
will : that, therefore, no right of any denomination, can be cancelled,
abridged, restrained, or modified, by the Congress, by the Senate, or
House of Representatives, acting in any capacity, by the President or any
department or officer of the United States, except in those instances in
which power is given by the Constitution for those purposes ; and that,
among other essential rights, the liberty of conscience and of the press,
cannot be cancelled, abridged, restrained or modified, by any authority of
the United States." We see what was the opinion of the State of Virginia,
wi-th respect to the powers of the Constitution, when she was called upon
to ratify or reject it. But, to remove all doubts, immediately upon its
going into operation, certain amendments were made, among which is
the following : ",The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to the states,
respectivelyjior to the people." This amendment, now a part of the
Constitution, ought to fix the real extent of the powers of Congress. But,
the gentleman was not satisfied with it, because the word expressly, was
not to be found there. Mr. Mercer hoped the committee would not believe
this single term essential to ascertain the limitation of power under which
Congress were bound to act. The* words of the amendment were general,
and conveyed a certain meaning. It was that which the face of the Con-
stitution, in its original form, would warrant, which cotemporaneous
opinions had maintained, and which the Convention of Virginia had de-
clared to be true. It .was impossible for language to be so explicit as to"
produce a clause that might not be subject to similar objections ; for, if
this term had been used in the amendment, gentlemen might have thought
it still defective, as others equally strong might have been left out. He
therefore supposed, as these evidences ascertained the power of the Federal
Constitution to be special, and as no power over aliens, such as has been
46 DEBATE ON VIRGINIA RESOLUTIONS,
exercised by Congress, in the law so generally obnoxious, had been, or in
his opinion, could be shown to exist in that body, the law itself must be
considered repugnant to the Constitution, and as invading the rights of the
states.
Many of the remarks of the gentleman from Prince George, were in-
tended to show the expediency of the law, and the inconveniences that
might arise from the want of the power in Congress to pass it. Mr.
Mercer considered these remarks entirely foreign from the inquiry before
the committee. The only question ought to be, whether it was constitu-
tional or not : if it was not, in his opinion, a violation of the Constitution,
which ought to be held sacred, he declared that he would not at this time
thus publicly deny its expediency* But there would be no period so criti-
cal, as to justify silence upon a departure from the Constitution. It might
be believed, that temporary advantages would result ; but permanent evil
would be the certain' consequence : for, if there was a maxim in American X
politics, it must be, that no law could be expedient, which was unconstitu-
tional. If it was found inconvenient that Congress had hot this power,
the remedy was plain : perhaps it was the best feature in the instrument
that pointed outthe manner in which itself could be amended. It did not
consider the present provisions in it as the unalterable effort of the best
reason, but left them to the operation 'of time and experience, by which
their defects might be unfolded: when these appeared, the remedy was in
amending the Constitution, and not in usurping powers by constructions,
so highly forced, as to leave its meaning entirely uncertain ; and to lay
the foundation for administering the government upon principles unac-
knowledged by the Constitution, and unknown to the states and the people
at the time of its adoption. But the gentleman had supposed, that under
the aid of necessary implication, Congress possessed the power of passing
the alien friend law ; and made his appeal to the last clause in the eighth
section, which said, that Congress should have the power " to make all
laws which shall be necessary and proper to carry into execution the fore-
going powers, and all other powers vested by this Constitution in the go-
vernment of the United States, or in any department or officer thereof."
Mr. Mercer said, this clause had been called in the Convention of Virginia,
by the opponents of the Constitution, the sweeping clause* But it was
evident, it referred only to the powers expressly " vested" in Congress by
the Constitution. It could give no new power. It would be absurd to
suppose, that after a special enumeration of powers, limited by the terms
of the grant, that any general expressions could so operate, as to produce
an increase of authority. It had not been shown to his satisfaction how
the law complained of, was " to carry into execution" any power vested
by the Constitution " in the government of the United States, or in any de-
partment or officer thereof." Under the construction that had been given
to it, it involved new powers, nowhere to be found delegated in that instru-
ment : for the true exposition of this clause, he would now refer to the
opinion of the other gentleman in the Convention, to whom he had alluded.
Mr. Madison, speaking of this clause, said, " It is only superfluity. If that
latitude of construction, which he (Mr. Henry} contends , for, were to take
place, with respect to the sweeping clause, there would be room for those
DEBATE ON VIRGINIA RESOLUTIONS, 47
horrors. But it gives no supplementary power. It enables them to exe-
cute the delegated powers. It is at most explanatory ; for when any power
is given, its delegation necessarily involves authority to make laws to exe-
cute it"
" With respect to the supposed operation of what was denominated the
sweeping clause, the gentleman, he said, was mistaken ; for, it only ex-
tended to the enumerated powers. Should Congress attempt to extend it
to any power not enumerated, it would not be warranted by the clause."
This opinion must be considered as the just onel It had been maintained
by the writer which he had cited, the Federalist. The Constitution itself
warranted the truth of it ; but, there ought to be no doubt after reading
the amendment, which had already been stated. If the power exercised
in the law, was not enumerated, neither this, nor any other general clause,
could give it to Congress.
The gentleman had called upon the committee, to show in what part of
the Constitution the powers of Congress, with respect to foreign nations,
were stated. Mr. Mercer hoped he did not mistake his remark, for it was
a very important one. If it was true that these great powers, certainly
exercised by Congress, were not vested in that body by express terms, but
were derived to them by construction or implication, the deduction that
would naturally flow from such a truth, would be fatal to the Constitution.
It was, if powers so great could be used, without being specially delegated,
it showed the extent of implication ; and under its operation other powers
equally important, and among them, that which Congress had exercised
over aliens, might be assumed, but such a position is destructive to the
Constitution. Mr. Mercer rejoiced in believing it could not be supported
by any argument drawn from the powers of Congress over foreign rela-
tions ; for none were more expressly delegated than these ; he begged
leave again to refer to that instrument, which should be our constant
guide. In the 10th section of first article, it is declared that " no state
shall enter into any treaty, alliance, or confederation." And that " no
state shall, without the consent of Congress, enter into any agreement
or compact with another state, or with a foreign power, or engage in war,
&c." This proved that all power with respect to foreign connexions was
taken from the states. It was not among their reserved rights ; nor could
they exercise it conjointly with Congress, because they were deprived of
it by negative words in the Constitution. It belonged exclusively to the
general government. To show this, he read the following clauses in the
Constitution : " The Congress shall have power to regulate commerce
with foreign nations." "To establish an uniform rule of naturalization."
" To declare war and grant letters of marque and reprisal." When
speaking of the powers of the President, it says, " He shall have power,
by and with the advice and consent of the Senate, to make treaties," &c.
" And shall nominate, and by and with the advice and consent of the
Senate, shall appoint ambassadors, other public ministers and consuls."
" He shall receive ambassadors and other public ministers." These clauses
embrace all the great objects of a foreign intercourse; they make it clear,
that the powers of the general government upon this subject, are expressly
delegated, and depend not upon nice constructions or implication.
48 DEBATE ON VIRGINIA RESOLUTIONS.
In these remarks, Mr. Mercer said, he had attempted to show that the
federal Constitution was a limited grant of power: that the power which
Congress had exercised in the case of the alien law, had been nowhere
delegated to them by that instrument, and ought not to be considered
within their reach, from implication. That if Congress did not constitu-
tionally possess the power over aliens, which they had exercised, the exer-
cising it was an invasion of the sovereignty of the states ; and whenever
this took place, the states had a right to communicate with each other, in
the manner contemplated by the resolutions now before the committee.
But if he had been convinced that this power was vested in Congress, the
manner in which they had used it, was equally repugnant to the Consti-
tution, and subversive of some of the most valuable provisions contained
in it. It was as necessary they should preserve the distribution of powers
actually delegated, according to the mode prescribed in the Constitution,
as it was for them not to assume powers which had never been delegated.
It was as necessary that one department of the government should not be
permitted to use authority, to the constitutional exercise of which only the
three branches were competent, as that the whole should assume powers
which neither had a right to exercise. The objections to this act had been
so often urged, and the public attention so much excited, that it would be
useless to dwell upon them at this time : he would briefly mention the
objections which he felt to the act, even if Congress had the power over
aliens which they had exercised. His first was, that it placed in the hands
of the President an union of authority, which by the principles of free
government, should always be kept separate and distinct. It gave him the
right to exercise legislative, judicial, and executive powers, which were in-
tended to be kept apart by the Constitution, and never could be united in
the same individual, or in the same department of government, without
producing a real despotism. To prove that legislative power was vested
in the President by this law, he asked what was the distinguishing charac-
teristic of that power, or the highest act that could be performed by it? It
was to prescribe a rule of conduct, commanding what was right, and pro-
hibiting what was wrong. What was the rule of conduct prescribed to the
alien by this law? What was he commanded to do, and what to avoid?
There was no rule of conduct laid down in the law. There was no crime
defined. Even the President was not required to say what the alien's duty
should be. Everything was confined within his own breast. The class
of men intended to be involved under this law, could not know they had
sinned, until the punishment was upon them. If he then prescribed the
rule of conduct for aliens, he also had the right under the law to judge
when that rule was violated : he was the executive department of the go-
vernment constitutionally, and the duties of legislating and judging were
annexed to his new office by this law. The second objection was, that it
destroyed the trial by jury, which he considered was extended to all -per-
sons by the Constitution. The terms were as general, and as comprehen-
sive, as language could make them. He begged leave to refer to them.
"The trial of all crimes, except in cases of impeachment, shall be by jury."
" No person shall be held to answer for a capital or otherwise infamous
crime, unless on a presentment or indictment by a grand jury, &c."
DEBATE ON VIRGINIA RESOLUTIONS. 49
IC Nor be deprived of life, liberty, or property, without due process of law."
" In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury, &c.," "be informed of the nature
and cause of the accusation: to be confronted with the witnesses against
him : to have compulsory process for obtaining witnesses in his favour ;
and to have the assistance of counsel for his defence." These just, humane,
and most invaluable of all privileges, were taken from the alien : his
"liberty" was to be suspended without any "grime" being defined, which
he ought to avoid ; without any " trial by jury," of which " no person" is
to be deprived under the Constitution ; there was no " information of the
nature and cause of the accusation" to be communicated to him ; he was
" to be confronted with no witnesses ; counsel could not be heard in his
favour ;" his liberty depended upon the mercy and justice of an individual.
The third objection was, that it virtually destroyed the right of the states,
under the ninth section of the first article of the Constitution ; for though
the states might admit the " migration or importation" of such persons as
they might think proper prior to a certain period, it was to little purpose,
if the President, influenced by his own suspicions, could send them away.
The argument of the gentleman from Prince George, seemed to relinquish
the point. He observed, that the law would have been unconstitutional,
if it had been a permanent one, passed prior to the year 1808, since it
would then defeat this section. Mr. Mercer said, he could not see how its
being temporary, would prevent the same effect from being produced : for,
if the power of Congress could pass such a law for two years, it might ex-
tend to the year 1808. If they possessed the right to originate the law,
and keep it in force for any term, however short, they could certainly
defeat the ninth section altogether ; because, as often as the period arrived
when this temporary law was to expire, they had only to pass it again for
a limited time; and by thus keeping it temporary, bring about the year
1808; after which the gentleman supposed the right would be in Congress.
The law being only a temporary one, therefore, could not possibly prove
it to be constitutional.
Much had been said, by the member from Prince George, respecting the
conduct of aliens, and the dangers that were to be apprehended from them.
Mr. Mercer did not suppose that the friends of the resolutions felt it their
duty to defend, or to blame that conduct, whatever it might have been,
without having ever understood any acts to have been performed by that
class of men by which American rights had suffered. The statement of
the gentleman might be true, and still it did no"t affect the question before
the committee. The object of the resolutions was not to defend aliens,
but to protect the Constitution, which had been violated in the case of
these men. If, under the intention of removing dangerous aliens, the
principles of that instrument would be openly violated, and some of its
wisest provisions set aside, the same might take place with respect to na-
tive citizens. If it was infringed upon in one instance, the same might
happen in any other.
With respect to the sedition law, as it was generally called, Mr. Mercer
said he would not tafce up the time of the committee in making any ob-
servations upon it. He was willing to let the proof of its unconstitutional
50 DEBATE ON VIRGINIA RESOLUTIONS.
quality rest upon the argument of the gentleman from Caroline. He would
only say, it was odious in his sight. It was certainly unnecessary, unless
the general government had reason to doubt the virtue and patriotism of
the people. If that government would pursue measures compatible with
the Constitution, and calculated to preserve the country in a statejof peace,
and not hasten that unhappy crisis with which we were threatened, when
war should be found unavoidable, every citizen would be ready to defend
his country's rights against the attempts of any nation upon earth. ,Mr.
Mercer -believed, if it had not been for the unfortunate difference between
America and France, there would have been few voices ready to approve
of several of the late acts of the general government. That difference had
been made the pretext for exercising power in a .manner which, two years
past, would have been universally condemned. He hoped the committee
would distinguish between the aggressions of France, and the operations
of our own government. The alarm of foreign invasion, created by go-
vernment, was not a modern thing. When power wished to encroach,
the same had been excited in every age and country. At this time, two
instances occurred to him. When Charles the Seventh of France wished to
establish a standing army in that country, he told the people it was neces-
sary to be ready against invasions from England. But when all danger
was removed, the army was kept up, and afflicted the nation for centu-
ries. Charles was the first .king of France who levied a tax without the
consent of the states-general. When Cardinal Ximenes introduced a
standing army into Spain, the people were informed it was necessary to
protect them against the invasion of the Moors from Africa; out when
these were expelled the country and their power destroyed, the army was
continued. History afforded many simila^r instances. It proved, that the
moment for power to enlarge its privileges was that of public agitation and
alarm ; he would make no inferences with a view of applying them to the
general government. Every gentleman in the committee might make his
own deductions. Mr. Mercer concluded by observing, that he should vote
for the resolutions, unless arguments could be offered to prove to his satis-
faction, that the acts complained of were constitutional.
Mr. PQPE arose next, and made several general observations in answer
to those which had fallen from Mr. George K. Taylor^ respecting the ne-
cessity of deliberation before decision in favour of the alien law, and con-
cerning Volney and Talleyrand. He then proceeded to observe, that as
to Talleyrand, the gentleman from Prince George was not correct as to
what he had related of him ; but besides, that he had not related the whole
story. He had represented him to be a great rascal indeed, and a very
great rascal he himself would acknowledge he was. But that he would
still give them a further account of that Mr. Talleyrand, as true as that
which the gentleman from Prince George had related. He then proceeded
to mention that, in the course of Talleyrand's stay in America, he had
been for some time much countenanced by some of the conspicuous cha-
racters in New York, of whom he particularly mentioned the gentleman
who never broke a command, who never disturbed the quiet or repose of
any family ; that gentleman who inviolably kept the sacred vow he made
DEBATE ON VIRGINIA RESOLUTIONS. 51
to his bride on the day of marriage. But as soon as these gentlemen dis-
.covered his political opinions to be different from what they supposed
them to be when they admitted him into their society, they instantly broke
off all communication with him, and ever afterwards reviled and persecu-
ted him. He made some observations respecting Volney ; and then asked
how the gentleman from Prince George had found out the story which he
had related of Volney, when Porcupine or Goodloe Harper never could?
Perhaps he had learnt it from Billy Wilcox ; and who was he ? A mere
automaton. He could say this he could say that anything or nothing.
He was directed altogether by the breaker of the matrimonial vow. The
gentleman from Prince George had spoken of Frenchmen sneaking away.
But sneaking as they were, he said, he believed all Europe sneaked before
them. However, he said, he was no champion for the French, any more
than for the British. He thought we had no business with either of them.
He then spoke of British aggressions upon our commerce. But these, he
said, were not felt by the executive of the United States, as well as many
of its citizens. He then complimented Mr. George K. Taylor upon his
talent in moving the passions. He had exercised that talent so effectually
a session or two before, as to draw tears from the members of that house,
(alluding to the speech delivered in favour of the new criminal law,) and
he himself must confess, indeed, that the gentleman had, on the subject
then before them, dealt more in pathos.than in argument. He then asked
why the gentleman, when reviling Genet, did not say something of Listen
too ? He believed that he (Listen) had done us as much harm as ever
Genet did. As a proof, he instanced the Spanish transaction. But when
that was stated to that great man, Mr. Pickering, he said that we were to
pay no kind of credit to it, for he was satisfied that our good allies, the
British, did not intend to injure us. The gentleman from Prince George,,
he said, had introduced a damsel, and that was the damsel of liberty.
When he had done so, he, (Mr. Pope,) cold as his blood was, confessed
that he was seized with an ecstacy. But when, at the same time, the
gentleman would not permit that damsel to remain within these walls, he
acknowledged that his feelings were very much wounded indeed. For he
(Mr. Pope), was fond of all damsels, but particularly so of the damsel of
liberty. And if he were so, cold as his blood was, what might they not
expect from that young, athletic gehtleman, whose warmth of blood was
so plainly visible. The same gentleman, he said, had also dwelt upon
the Saint Domingo horrors. The alien law, he (Mr. Pope) said, had
not removed them. He believed all the emigrants from that place were
aristocrats : but they had not been removed. The gentleman had also
mentioned the determinations of the other states. As well as he could
recollect, he said, he conceived that such determinations extended only to
an approbation of the measures of the Executive in regard to the nego-
tiation with France. But, be they what they would, we -were not bound
to follow their example. Kentucky had differed from them. He asked
who had knocked at the doors of the aristocratic Senate of the United
States but Virginia ? She had been the chief means of opening them. In
that instance, then, she had weight. He wished, therefore, that on this
occasion they should do what they thought righK That, too, might pro-
52 DEBATE ON VIRGINIA RESOLUTIONS.
bably have weight. If it should not, they would at least discharge their
duty. At any rate, he thought the determination, according to the reso-
lutions which they were about to make, would not lead to war, as was
apprehended ; and therefore they might safely agree to pass them. How-
ever, he said, he did not feel himself so rigidly attached to the' resolutions,
but that he would be willing to agree to any modification of them to
accommodate gentlemen, provided the substance of them should be so
retained as to go to declare the laws of Congress under their considera-
tion, unconstitutional.
Mr. JOHN ALLEN arose nextj and said he was not accustomed to make
apologies for anything he wished to say in this house, nor should he do so
in the present case; the subject was of too much importance to require
any. And, notwithstanding his ill state of health, he rose to give his
feeble aid in favour of the wounded daughter of liberty. In deciding on
a constitutional question, he did not expect that the understanding was to
be banished, and the passions only left to be their guide. But, he found
that the gentleman from Prince George, through the whole of his lengthy
harangue, relied solely on the force and effect of the latter. That gentle-
man informed them that he should confine Jiis observations to the alien law,
and attempt to prove it constitutional. How did he do this? By describ-
ing, in the most terrific colours, the conduct of the French towards us,
and other nations ; and then asserting, that the alien law was made to
protect us from the French. But, before the gentleman indulged himself
in his description of the cruelties and aggressions committed by the
French, he should have proved that this law related only to that nation.
But it clearly was not so. It extends to all nations alike, and without
discrimination. The law need only be read to prove the truth of this
assertion.
Unless, then, it appeared that we were threatened with, or had danger
to apprehend from, all the nations on earth, that law could not be justified,
even by the gentleman's own arguments. The gentlemen had further
observed, that if this law had been permanent, it would be unconstitu-
tional ; but, if temporary, it would not. Mr. Allen said, in his opinion,
there was no difference between the cases. He could not discover how a
clause in a law declaring that it should expire at a particular period, could
make the law constitutional. But, the gentleman did not appear to rely
much on that argument ; only that it gave him an opportunity of return-
ing again to his favourite theme, a description of French cruelties. But,
said the gentleman, the admission of aliens in a country was a matter of
favour, and not of right. But, Mr. Allen averred, that the admission of
alien friends into a country was not a matter of favour ; and even if it
were, when they were in a country they were entitled to certain rights,
which he enumerated, and which, he said, were derived to them from the
laws of nature, nations, and humanity. The gentleman admitted that an
alien could not bef deprived of life or property without a trial, and that
by jury. If so, surely they should not be deprived of their liberty with-
out trial, and that too by jury. But, perhaps, in these modern days, life
and property only are to be held sacred, while liberty is to be exposed to
the whim or caprice of* a single man. If, indeed, this be the case, and
DEBATE ON VIRGINIA RESOLUTIONS. 53
liberty is considered of less value than property, then the argument of
the gentleman should have some weight. But, we are taught by the Con-
stitution to rank liberty next to life. If, therefore, an alien cannot be
deprived of his property without trial by jury, he certainly should not be
deprived of his liberty without the same kind of trial. On that account,
then, he said, the law was apparently unconstitutional. But suppose, he
said, it was absolutely necessary to provide by law for sending aliens out
of this country, who had the power to do so ? Congress, or the states ? He
declared that the states had. He read the first clause of the ninth section
respecting the migration of persons prior to the year 1808, as proof of
the assertion. But, even if Congress had such a power, they had no
right to vest it in the President, for reasons that had already been given,
and that were too apparent not to be understood. He then proceeded
to point out the danger of placing too much power in the hands of the
Executive. He stated instances of the unhappy effects proceeding from
it in Britain ; agd was afraid we had much danger to apprehend from a
desire in Congress to increase executive power. This law, vesting in the
President such enormous powers, the gentleman from Prince George
observed, was made for the purpose of getting rid of two individuals, and
as they had sneaked out of the country, there was no farther necessity
for the law. To what extremity, said Mr. Allen, must the United States
have been reduced. How must they be degraded, when we are informed
that it was necessary to make the President absolute tyrant over perhaps
a million of people, to get rid of two men.
But it was urged as an objection to the adoption of the resolutions under
consideration, that the people were the proper tribunal to' decide upon the
constitutionality of the laws, and that they would shortly decide the ques-
tion at the next election. Mr. Allen contended, that was not a proper
mode for the decision of such a question, for that the people often voted
from personal or local attachments ; and that they were not always ap-
prised of the opinions of the different candidates ; and he instanced his
own district as proof of the latter assertion. But, he said, if this was a
proper mode of deciding this question, he believed there was no doubt how
the people would determine. And this house, by "the re-election of a
senator of the United Slates the, other day, had already decided the ques-
tion. Mr. Allen then concluded by making some general observations on
the dangerous consequences of deriving powers from implication ; and
said, that he at that moment experienced too much bodily pain to be. able
to proceed further. ' .
On motion of Mr. Magill, the committee then rose, the chairman reported
progress, asked, and had leave to sit again.
IN THE HOUSE OF DELEGATES,
Monday, December 17, 1798.
The House resolved itself into a committee of the whole house, on the
state of the commonwealth, Mr. Brackenridge in the chair, when Mr.
John Taylors resolutions being, still under consideration, /
54 DEBATE ON VIRGINIA RESOLUTIONS.
MR. BARBOUR arose, and observed, that being a young man, he did not
intend to have troubled the committee with any remarks upon the subject
under discussion, but the solicitude he experienced had impelled him for-
ward. He observed, that the moment on which he arose, might be called
the first of his political existence, and yet in that moment he was called
upon to decide a question, in which, not only his own fate as a politician,
but the welfare of his country was materially involved. Mr. Barbour
. asked, what must be the sensations of a young man the first instant he
stepped on the theatre of public life, to be called on to act a part, in which
such important consequences are implicated ? He observed, he experienced
those sensations to an eminent degree. But having formed a rule, by
which he meant to be governed in his political career, which was, to pur-
sue the line of conduct his judgment dictated as the most proper, he would
announce to the committee, and through the committee to the world, the
motives which actuated him to give the vote he was about to pronounce,
which would be in favour of the adoption of the resolutions. He observed,
it had been remarked by every gentleman, whether pro or con, that the
event of the present discussion was important. He begged leave to add
his testimony likewise to the importance of the subject. And he believed
he should not use language too strong, was he to assert, that in the pro-
ceedings of this Legislature might be read the destinies of America : for
issue was joined between monarchical principles on the one hand, and
republican on the other ; and they were the grand inquest who were to
deterrtiine the controversy. For should so important a state as Virginia
sanction the measures complained of in the resolutions, (which she would
do if the resolutions should be rejected,) it would become a step-stone to
. farther usurpation, until those great rights, which are guaranteed by nature
and the Constitution, will be destroyed one by one, and a monarchy erected
upon the ruins thereof. But on the contrary, if she discountenanced those
measures, (as she would do by the adoption of the resolutions,) and could
obtain the co-operation of the sister states, it might overawe tyranny, for
tyranny in embryo was timid. He asked, could it be necessary, to con-
jure the members of the committee to be tremulously alive to the import-
ance of the subject, and viewing it free from prepossessions, should give
that opinion, which would redound most to their own fame and eventuate
f in the welfare of their country. He then read the resolutions, and observed,
the gentleman from Prince George had remarked, that those resolutions
invited the people to insurrection and to arms. But Mr. Barbour said, if
he could conceive that the consequence foretold would grow out of the
measure, he would become its bitterest enemy, for he deprecated intestine
commotion, civil war, and bloodshed, as the most direful evils which could
befall a couniry, except slavery. A resort to arms was the last appeal of
an oppressed and injured nation, and was never made but when public
servants converted themselves, by usurpation, into masters, and destroyed
rights once participated ; and then, it was justifiable. But he observed,
the idea of that same gentleman was in concert, as would appear by re-
ference to a leading feature in the resolutions, which was, their being
addressed not to the people, but to the sister states; praying, in a pacific
way, their co-operation in arresting the tendency and effect of unconstitu-
DEBATE ON VIRGINIA RESOLUTIONS. 55
tional laws. He observed, it had been said by some gentlemen that they
admitted the unconstitutionally of the laws, and yet they would vote
against the resolutions, for that the subject exclusively bejonged to the
people, and if their servants had violated their trust, they ought to substi-
tute others. In answer to this, Mr. Barbour observed, that doctrine like
this was pregnant with every mischief. For once admit, said he, that
the states have no check, no constitutional barrier against the encroach-
ment of the general government, we should thereby lessen that weight to
which the state governments are entitled in the political machine, which,
in America, is a complex one. We should thereby destroy those checks
and balances, which are the sine qua non of their mutual existence and
welfare. And the consequence then would be, that instead of harmony
and symmetry which has hitherto prevailed, chaos, confusion, and all the
evils incident to that situation, would be the inevitable result. In theory
this doctrine is alarming, but fortunately for the liberties of America, when
it comes to be tried by the rules of reason and sound argument, it is found
monstrous and absurd, and therefore its advocates must be few. He
observed, that he would undertake to demonstrate that, although the people
possessed the right of excluding those who advocated the obnoxious mea-
sures, and he hoped would exercise the right, yet the- state legislatures
not only had a concurrent right, but were equally bound to exercise that
* right. ^He asked, who were the parties that formed the compact? Were
y they not the J^eople and the states ? If it had been formed exclusively by
the people, he supposed a majority of the people would have been sufficient
to have confirmed the compact. But what was the fact? Did not the
Constitution require, that the consent of nine of the states shall be an in-
dispensable preliminary to its adoption? Again, did it not permit three-
fourths of the legislatures to alter the Constitution, without the intervention
of the people ? And cannot the states admit new parties to the compact,
to wit, by the erection of new states? Again, are not the state legisla-
tures to the Senate, what the people are to the Representatives? And if
the latter possess the power of censure and discharge (which as yet no
gentleman would deny), must it not follow by a parity of reasoning, that
the former possess the same power relative to the body elected by them-
selves ? Again, .the President is elected by electors, who, represent the
states as well as the people ; for the number of electors is not in propor-
tion to the number of the people alone, but the states as well as the people:
for example, the state of Delaware has three electors, when it is entitled
to but one representative ; whereas Virginia has only twenty-one electors
when she is entitled to nineteen representatives. It must follow, then, as an -j.
V incontrovertible deduction, that the states are parties to the compact, and
/being parties, if the compact was violated (as it was violated) the states have
/ the right, and ought to exercise it, to declare that those proceedings, which
are an infringement upon the Constitution, are not binding. The state
legislatures being the immediate representatives of the people, and conse-
quently the immediate guardians of their rights, should sound the tocsin
of alarm at the approach of danger, and should be the arm of the people
to repel every invasion. If, said he, the alien and sedition laws are un-
constitutional, they are not law, and of course of no force. For what are
56 DEBATE ON VIRGINIA RESOLUTIONS.
the necessary ingredients to the Constitution and the force of a law ? It
was not only essential they should receive the sanction of the constituted
authorities, but the act itself must be. in unison with the Constitution ; for,
if an agent should transcend his limited authorities, he would be guilty of
usurpation; and all usurpation being founded in wrong, whatever has that
only for its support, must be void. This being the case, the legislature
would-be guilty of misprision of treason against the liberties of their con-
.stituents if they did not denounce the violations offered to the Constitution
through the medium of the alien and sedition laws. He observed, it re-
mained for him to show, that the laws alluded to, were unconstitutional.
The worthy gentleman from Caroline having proven, in a clear and
perspicuous manner, the unconstitutionally of the sedition law, and
delineated, in masterly and eloquent language, the consequences of that
act, which is entitled to the infamous pre-eminence in the scale of guilt,
and as no gentleman had undertaken its defence, Mr. Barbour said, that
his remarks would be confined to the alien law alone. And, in order to
;' ascertain whether this law was constitutional or not, reference must be had
> to the nature of the Constitution. The government must be either limited
| or unlimited. If the latter, it was omnipotent, like the Parliament of Great
Britain, and was adequate to the purpose of passing any law, however
impolitic, absurd or dangerous it might be to the liberties of the people.
But, if it were limited, (which was a principle he supposed so clear, that
to consume the time of the committee in proving it, would be a superero-
gation,) it would remain then to be inquired, whether in the limited power
granted, a power be given to pass a law like the one now under discussion,
or not. He observed, that to comprehend the nature of the Constitution
of the general government, it might not be unimportant to recur to the
political situation of America, prior to the adoption of the federal govern-
ment. In 1776, the thirteen United States, then the colonies of America,
after having been lacerated to the midriff, by the vulture fangs of British
persecution, threw off their colonial subjugation, and took a stand among
the nations of the earth. At this time, there were thirteen independent
*.& $ sovereignties tied together by the feeble bands of the articles of confedera-
" * : | tion. So long as the pressure of external danger was felt, so long the
bond of union was found sufficiently strong. So long as all jealousies and
rivalships were sacrificed on the altar of public good, the defects of that
system were, in some measure, concealed. But, so soon as the pressure
of foreign invasion was removed, so soon it was discovered that the
system of union created by the confederation, was inadequate to the sub-
lime purposes for which it was intended. The people of America saw
and deplored the situation with which they were menaced ; and the Vir-
ginia Legislature, sensible of the jeopardy to which their well earned liber-
ties were exposed, were the first to recommend a reformation in the compact
by which the states were connected, notwithstanding the senseless yell
and malicious calumnies with which certain hireling papers to the east
teem, of a disposition in this state to shake off the union. Influenced by
this spirit, the convention met in the year 1786, in Annapolis, but broke
up without doing any thing effectual. In the year 1787, the convention
which met in Philadelphia, gave birth to the Federal Constitution. The
DEBATE ON VIRGINIA. RESOLUTIONS. 57
object of the general government ex vi termini, must be for general pur-
poses ; and the powers necessary to carry those purposes into effect, were
yf expressly defined ; and it was the sense of the American people, cotempora-
neous with the adoption of the general government, when the attributes and
qualities of that government were best .understood, that all powers not
granted were retained. As an evidence of which, let reference be had, he
said, to the twelfth amendment of the Federal Constitution, which expressly
declares, that all powers not granted to the general government, were
retained to the states, or the people, respectively. It was then urged, (with
propriety too, as the sequel has evinced,) that the Federal Constitution was
defective, in cpnsequence of its wanting a bill of rights. It was answered
by the advocate* of the Constitution, (amongst whom was Mr. Lee of
Westmoreland, who now displayed great zeal in support of administration,
and consequently, amongst the friends of administration, should have some
weight,) that the Constitution was belter without, than with a bill of rights ;
for, if there had been, (Mr. Lee observed,) an enumeration of particular
rights, with the friends to forced construction there would have been a
claim, as residuary legatee, to all rights not expressly retained; but in
the present government, there were only particular powers granted, and
consequently, all powers not granted, are retained to the states, or the
people, respectively : a doctrine which he (Mr. Harbour,} observed before,
had been recognised in the twelfth amendment to the Constitution. Mr.
Barbour then observed, that he having shown that the government could
exercise no power but what was specifically enumerated, it behooved the
authors or supporters of the law to show that the power of making a law
like the one which was now the subject of discussion, was designated in
thejjst of specific powers. If they could not show it, it must follow, it
was an usurpation of power not warranted by the Constitution. To ascer-
tain the truth upon this subject, which in argument was desirable, let
reference be had, he said, to the section which enumerates the powers that
Congress can legally exercise, (being the eigtith section of the first article.)
Any power which Congress should exercise, not warranted by that char-
ter, would be an usurpation upon the rights of the states, or the people;
and in proportion to the extent of the usurpation, should be the execration
of every friend to republican government and the liberties of the people.
It would be discovered, when reference was had to the section of the Con-
stitution alluded to above, that no power to make an alien law is granted.
When gentlemen are called upon to justify the assumption of power, they
desert the ground of the law being justifiable agreeable to .the. letter of the
Constitution, and take refuge behind the sanctuary of implication. Mr.
Barbour then described the danger of implied power, in a warm and ani-
mated manner. He begged the committee to be alive to the mischief with
which this doctrine was teeming. If, said he, we once abandon the high
road which the wisdom of our ancestors has established, and in which the
constituted authorities were directed to walk ; if we once abandon that
palladium of civil liberty, our rights will be immediately gone. No, said
he, let us, if our servants turn either to the right or to the left, smite them
as of old was Balaam's ass, so that they turn not away from the path to
which, if we mean to keep our liberties, they should adhere with unde-
58 DEBATE ON VIRGINIA RESOLUTIONS.
viating regularity. Promulge it once, said he, to the world, or rather to
Congress, that they have a right to exercise powers by implication, and it
requires not the aid of prophecy to foretell, if we may judge of the future
by the past, that those great and inestimable rights which flow from nature,
and are the gift of nature's God, will be assassinated by the rude and
unfeeling hand of ferocious despotism. That body will not only pass
alien and sedition laws, which they have had the audacity to pass in the
tenth year of the Constitution, but will go on to increase the already black
catalogue of crimes, new fangled, and existing only in the brain of suspicion
and political villany, till some of the best patriots are sacrificed, and the
purest blood of which America boasts, streams. The friends of liberty will
be sacrificed, as so many obstacles to their ambitious designs, and des-
potism, covered with the gore of patriots, will stalk with impunity amongst
us. But, Mr. Barbour said, he had determined to pursue the gentleman
from Prince George through all the meanders and twistings of his argu-
ment, and expose its fallacy and danger ; that there should be no ground
upon which the supporters of this law should find rest : like the dove of
old, they should be compelled to take refuge in the ark, which, by the
resolutions, was prepared for their reception. For this reason, for the sake
V~ of argument, but for that only, (God forbid it should be for anything else,)
he would admit the principle that Congress might legislate by implication,
yet it could have no power of the kind which appears to have been exer-
cised in making the alien law. But before he went into that subject, it
was necessary he should take notice of some miscellaneous remarks which
had fallen from the gentleman from Prince George. That gentleman had
observed that Congress had passed the law, and that we .should hesitate
before we declared it unconstitutional ; for if it was unconstitutional, the
people ought to resort to arms. In answer to this, Mr. Barbour observed,
that the circumstance of Congress having passed it, if it was intrinsically
unconstitutional, did not render the law less so ; and although he had a
high respect for some of the members of Congress in both houses, on
account of their talents and integrity, yet some of the warmest advocates
of this law and executive measures, were suspicious characters from their
situation in life, which was so desperate as not to be endangered, but on
the contrary they might try to be bettered by revolution and convulsion.
Political profligacy in a republican government sooner or later will meet,
its fate, the execration of an injured people; but by a change, the Judases
of American liberty will aspire to the acme of opulence in the sunshine of
monarchy, the most genial climate for the growth of everything which is
abhorrent to republican simplicity and virtue. But, he said, if he had the
highest estimation both for their virtue and wisdom, he should exercise his
own judgment, with which he had been blessed by the God of nature, and
if that condemned it, he should not hesitate to declare in strong terms his
. I disapprobation.?! He trusted, he said, that the American people were not
/ prepared for unconditional submission and non-resistance. A doctrine like
/ this would have disgraced the last century, and was fit only for the misera-
/\ ble regions of the East, where ignorance, superstition and despotism their
sad dominion keep;$ He trusted that the American people did not intend
to attach to servants the attribute of infallibility : if not, the adoption of the
DEBATE ON VIRGINIA RESOLUTIONS. 59
law under. discussion, by Congress, would have no weight upon the mind
of the committee. The gentleman urged that we should hesitate, before a
declaration was made that the law was unconstitutional. Mr. Barbour
asked, what had been the conduct of the committee? Had they rushed
precipitately into a determination? On the contrary, had not the subject
been discussed for several days ; and would it not continue to be discussed
for several days more? Had not every gentleman an opportunity of
delivering his ideas upon the subject 7 ? And had not a depth of judgment
and a brilliancy of talent been displayed in the discussion, which would
do honour to any deliberative body? In short, had not the subject been
treated in a manner suited to its importance ? What more, then, could be
asked 1 The gentleman from Prince George was for the people's rising
en masse, if the law was unconstitutional. For his part, Mr. Barbour
said, he was for using no violence. It was the peculiar blessing of the
American people to have redress within their reach, by constitutional and
peaceful means. He was for giving Congress an opportunity of repealing
those obnoxious laws complained of in the resolutions ; and thereby effacing
from the Amercan character a stain, which, if not soon wiped off, would
become indelible. The gentleman from Prince George had further said,
that all the other states in the union had met and adjourned, and tacitly
acquiesced in the measures which had been pursued by the general govern-
ment. The gentleman was incorrect in point of fact.
The state of Kentucky had, in language as bold as could be used, ex-
pressed their execration of some of the leading measures of the general
government adopted at their last session ; but upon none more particularly
than upon the laws complained of in the resolutions. The state of Ten-
nessee was in such a situation, as to require or authorize the Governor to
convene an extra session. About what could it be, if it was not the un-
easiness .experienced by the people of that state at the usurpation of the
general government? In respect to the other states being not adverse, he
would not contradict the gentlemen. But what weight would this remark
have upon the committee? Was the conduct of the other states to be the
criterion whereby to govern this state ? He trusted not. He hoped, that
so long as this state kept its independence, it would think and act for itself.
Virginia had been always forward in repelling usurpation of every kind ;
and he trusted she never would forfeit the reputation she had acquired ;
but always would be the champion of the rights and liberties of America.
But, he said, having answered the desultory remarks of the gentleman
from Prince George, he would return to the doctrine of implication. That
gentleman read the preamble to the Federal Constitution, to prove that, as
the liberty and general welfare of the whole were the object of the Con-
stitution, Congress had a right to do anything which might be necessary,
in their opinion, to effect that purpose. The inference, Mr. Barbour ob-
served, which had' been deduced, was by no means tenable. To assert
that the preamble to the Constitution should alter or subvert the Con-
stitution, or that the preamble gave powers not given in the Consti-
tution, was in theory such a monstrous solecism, and so much opposed
to every principle of construction, that he did suppose it would be sub-
scribed to but by few. The preamble, to be sure, explains the end of
60 DEBATE ON VIRGINIA RESOLUTIONS.
the Constitution. It was to secure the liberties and welfare of the Ameri-
can people, but upon what terms? Why, upon the terms designated in
the Constitution. The people of America and the states, knew that the
powers conceded to the general government by the Federal Constitution,
were adequate to the ends contemplated. Then to pretend to assert that,
although those powers, which the states and people designated as those
only, which should be exercised, were not the only powers that were
granted, was a calumny against the framers of the Constitution ; for they
must have intended to ensnare the people. For what mind could hesitate
to pronounce, that the object of enumerating the powers must have been
to fix barriers against the exercise of other powers? And Mr. Barbour
demanded to know, what was the use of a specific enumeration of powers,
if it was intended to invest the general government with sweeping powers ?
For what could be more awkward or ridiculous, than to see the wisdom
of America defining the particular powers, which its government might
legally and constitutionally act upon, and in the conclusion, investing
it with general powers, which from the expression, must have included
all those specific powers, which had been previously granted. Mr. Bar-
bour then referred to Publius, 2d vol., pages 46, 7, 8, as an author, who
had treated this subject very fully and ably. The gentleman from Prince
George had said, that the last clause of the 8th section of the 1st article,
commonly called the sweeping clause, the substance of which is, " That
Congress shall have power to pass all laws which shall be necessary to
the carrying into effect the foregoing powers," would justify Congress in
making the laws complained of. Mr. Barbour asked, what was the object
of that clause? It was not to create new powers, but to complete the
other powers before granted. This clause was indispensable ; without it,
the Constitution would have been a dead letter. For if Congress possessed
not the power of making laws to carry into effect the powers specifically
enumerated, the powers granted would have been useless ; since to possess
rights which cannot be carried into effect, was just the same as if there
were no rights. But no other construction could attach ; for that clause
speaks only of those powers which before had been granted. And if no
power relative to aliens had been granted, this clause could have no possi-
ble effect, which he hoped he had sufficiently demonstrated. Mr. Barbour
said that the gentleman from Prince George had relied upon the fourth sec-
tion of the fourth article of the Constitution, by which Congress guarantees
to each state a republican form of government, and binds itself to protect
each state from invasion, &c., as one out of which the implied power of
making alien-laws grew. For he asked how could the general govern-
ment protect from invasion, without the power of passing a law like the
alien ; and that it was indispensable the general government should possess
the power of expelling aliens ; for, if they had not the power, the state of
Virginia might admit Bonaparte's army, with him at their head, (if he
should ever escape from the Nile.) If, said Mr. Barbour, no other reason
could be assigned in favour of the alien law, than an idea so wild as the
danger of admitting Bonaparte and his army, its supporters must be in
pitiful distress. To anticipate danger of this kind, was to attach to this
state not only criminality, and that too of the blackest kind, but stupidity
DEBATE ON VIRGINIA RESOLUTIONS. 61
bordering on idiocy, and to set at defiance the uniform experience of man-
kind. For was it ever yet known that a nation^ participating the blessings
of liberty and peace, invited into its bosom a powerful foe, by which those
invaluable blessings might be rifled. An idea of this kind was the child
of a mind labouring to but little purpose to find some justification for the
opinions it advances. But who could have supposed that the section
alluded to, which had for its object only imposing an obligation, should by
some be converted into a source of power'.' What, Mr. Barbour asked,
was'the object of that section? It was to impose on Congress the duty of
defending each state from invasion. Congress, in the eighth section, had
the power of declaring war ; yet, without this section, Congress was not
bound to exercise this power; and but for this section,. Congress might
have seen a state invaded, and yet by the letter of the Constitution,
would not have been bound to have defended it from invasion, but might
have left her to her own resources. To guard against this inconvenience
was this section inserted ; yet out of this, the committee were, told new
powers are derived to the general government. Mr. Barbour observed, it
appeared to him a bold and unjustifiable assertion to say that the expul-
sion of alien friends was necessary to prevent invasion. For his part, his
small intellectual faculties could not perceive the connexion. He could
readily perceive the necessity .of expelling alien enemies; a right which
Congress possessed, and upon v/hich they had acted ; but that the expul-
sion of a friend was necessary to the prevention of invasion, created in
his mind a confusion of ideas. It was asked by the gentleman from
Prince George, by what authority did Congress exercise control over
foreign intercourse, if it was not by implication? ]\Ir. Barbour answered,
that the power was granted, he thought, by the third clause of the eighth
section of the first article, the second clause of the second section, and the
third section of the second article of the Federal Constitution. By the
first, Congress has power to regulate commerce with foreign nations. By
the second, the President, by and with the advice and consent of the
Senate, may make treaties, and shall likewise appoint ambassadors and
other public ministers and consuls. And v by the last, the President is
vested with the power of receiving ambassadors and other public minis-
ters ; from which it is apparent, that without the aid of implication, the
general government possesses the power of regulating foreign intercourse.
It was asked, too, by the same gentleman, -by what power did Congress
erect forts, if it was not by implication? Mr. Barbour answered, by the
last clause but one of the eighth section of the first article there was this
language : " Congress shall have the power to exercise exclusive legisla-
tion in all cases whatsoever over such district, &c.:" "And to exercise
like authority over all places purchased, by the consent of the legislature
of the state in which the same shall be, for the erection of forts, maga-
zines, &c." Mr. Barbour concluded upon this point, by observing that
surely the gentleman had not read the Constitution, for if he had he* would
not have propounded the question, when he must have known the answer
would recoil upon him. It was asked, too, by the gentleman from Prince
George, if Congress possessed not the power to make the law now under
discussion, by what authority did they make a law relative to alien ene-
62 DEBATE ON VIRGINIA RESOLUTIONS.
mies. Mr. Barbour answered he was happy he was able to instruct the
gentleman upon the subjecj of the Constitution, which he (Mr. Taylor) had
not read, or if he had, it was in a cursory and inattentive manner. He
referred <he gentleman from Prince George to the eleventh clause of the
eighth section of article the first. By that, Congress had the power of de-
claring war. So soon, then, as war shall be declared, by the law of na-
tions, alien enemies become prisoners of war ; and being prisoners of
war, and Congress having the sole power of declaring war, Congress had
a right to say what should be done with the prisoners, whose destiny Con-
gress alone could decide. Again, the power of declaring war was the
genus. The prisoners, which shall have been made under that declara-
tion, might be qalled a species. Now, as the genus has been granted, the
species, which is subordinate to the genus, has been granted likewise ; it
being an axiom in reason, that the less is always included in the greater.
To deny the truth of this position, would be as absurd as to say, when A.
has transferred to B. a parcel of land, that the house or the wood upon the
land are not granted likewise. Or, when a transfer in fee simple is made,
that the life estate is not given also. But it had been said, that Virginia
had passed a similar law, and, therefore, Congress must have the right.
Doctrine like this should be a warning to the Virginia Legislature not to
deviate from the principles of liberty, or the spirit of its Constitution, lest
it should become a pretext to justify the worst of purposes in the hands of
the general government. He observed, that he would not say whether
Virginia had done right or wrong, in passing the law alluded to, because
it was unimportant in the present discussion. He observed, the doctrine
contended for by the gentleman from Printe George, namely, that Con-
gress had a right to pass the law, because Virginia had done so, deserved
the most serious attention and unreserved disapprobation of the committee.
For, if it be true, the government of the United States would become an
absolute consolidated government, and the sovereignty of the States anni-
nilated ; from which situation, said Mr. Barbour, good Lord deliver us !
But fortunately for us, he said, the position existed only in the mind of its
author. The state legislature had a right to regulate the mode of de-
scents. Agreeably to the doctrine of the gentleman from Prince George,
Congress would have a right to pass a similar law. Congress would pos-
sess the power of reviving the old feudal monarchical principle of primo-
geniture ; and he had no doubt that it would be done, because it would be
in unison with the other acts of the general government. Yet, no sober
man, at this time, would say that Congress has a right to to say anything
relative to the rules which shall be observed in the descent of estates. It
must be clear and obvious to every man, not infatuated with political fal-
lacy, that there is a line of demarcation drawn between the powers of the
state and general governments; and to assert that Congress can do what-
ever the state can do, is as absurd as to say, the state can do whatever
Congress can do ; a position he did suppose the advocates of congressional
omnipotence would be- unwilling to admit. Mr. Barbour asked, in what
cases Congress had a right to call in the aid of implication, admitting,
for argument's sake, that, on particular occasions, they might resort to
that alternative ? For allow the supporters of the principle the utmost
DEBATE ON VIRGINIA RESOLUTIONS. 63
latitude for which they contended, it could only be resorted to when the
Constitution had given a power that cannot be consummated without im-
plication. Wherever the Constitution was explicit, implication must be
excluded. He said he would illustrate his idea by assimilating this case
to the doctrine which would prevail in the instance of presumptive and
positive evidence. Where positive evidence, from the nature of the case,
cannot be procured, presumptive evidence is admissible, but where positive
evidence can be procured, presumptive evidence is inadmissible. The
Constitution, too, in the ninth section of the first article, is expressly in
point. It is to this effect : " The migration or importation of such persons
as any of the states, now existing, shall think proper to admit, shall not be
prohibited by the Congress prior to the year 1808." This then, explicitly
declaring that Congress shall not inhibit the migration of aliens, if the
state should think proper to admit them, must unquestionably exclude the
idea of implication, and, consequently, the deductions drawn from that
source, (the source itself being corrupt), must be fallacious. But it might
be answered by a quibbler, that the alien-law did not prevent the landing
of aliens here. But where, Mr. Barbour asked, was the difference between
their being prevented from landing, and the very moment they landed
being sent off? He begged leave to state a. similar instance, which would
prove this was a distinction without a difference; namely, if a man should
suffer another to come into his house, and the moment he stepped in, should
kick him out, would this not be as bad, nay worse than if he had, prevented
him from coming in at all ? The liberal mind looked down with pity and
disdain upon such subterfuges ; and hesitated not to declare that the alien-
law did, beyond question, violate the Constitution of the United States in
this part thereof. This part of the Constitution being violated should ex-
cite universal alarm ; because to it was attached particular inviolability
by the fifth article which declares that in this particular the Constitution
should not be amended prior to the year 1808. Mr. Barbour said, the
gentleman from Prince George having exhausted the doctrine of implica-
tion, had resorted to that of expediency, and contended that although Con-
gress had neither express nor implied power to pass the law, yet it being
expedient, it was correct. He said if that doctrine be true, the Consti-
tution, instead of being the main pillar of American liberties, was but an
institution calculated to ensnare. By the provisions in the Constitution,
which the American people supposed as so many guarantees to their liber-
ties, they had been trepanned into a fatal apathy, whilst they indulged,
themselves in what they supposed a well-grounded reflection, that the
checks in the Federal Government were inviolate. They were now, as it
were, awakened from the fatal repose into which they had been carried by
misplaced confidence ; and as the people of Caroline well expressed it,
this boasted Constitution of their own choice, and the rights which it se-
cured, are to* evaporate in the crucible of legislative expedience. He said
he felt himself unusually agitated at the bare mentioning of such .mon-
strous doctrine. Go, said Mr. Barbour, and read the historic page : it
would there be found that expediency has been the invariable pretext of
tyranny : it has been with that engine that the liberties of a free people
were eternally assailed. If, said he, the time should ever come (which
64 DEBATE ON VIRGINIA RESOLUTIONS.
God forbid) when that doctrine should prevail, we might date it as the
era of the downfall of American freedom. From that moment, let the
votaries of liberty be shrouded in sackcloth, and with ashes upon their
heads, deplore the departure of their protecting genius. And, if from
America the genius of liberty should ever take her flight, like the vital
spirit, it would return no more to re-animate the body from which it had
flown. The gentleman too, to support the necessity or expediency of the
law, resorted to the situation of this country as it related to France. This
he said was the favourite theme : this was a ground he had anticipated ; it
was not new ; it had been successfully adopted by the higher orders of
government. The conduct of France towards this country had been
echoed by the friends of administration from every patt of America,* and
under the momentary delusion created by the dispatches of the American
envoys, it was hoped that principles of usurpation might be pushed. The
jealous friends of the Constitution and the liberties of the people, if they
had fortitude to oppose the impulse of the moment, and declare that the
general government was bent upon the subversion of republican princi-
ples, were branded with the opprobrious epithets of being disorganizes,
French partizans, and enemies to all order; and the President of the United
States, confident of success from the supposed wisdom of his operations,
has condescended to become the head of the party, and has used language
which, from its billingsgate style, as a man he treated with supercilious
contempt; but as an American, he would feign shed an obliterating tear,
which should efface it for ever. As coming from the chief magistrate of
the Union, it would inflict an indelible stigma upon the American name.
Mr. Barbour said, he would not pretend to justify the conduct of'France
to this country. It was such as met with his disapprobation. It was an
event, he said, that would be long deplored, and the consequences thereof
were incalculable; for it had become the pretext of those measures, of
which he complained. But,' he said he felt indignant at the idea, that
domestic usurpation was to be justified upon the ground of the maltreat-
ment of a foreign nation ; and that the President of the United States
should dare brand the guardians of the rights of the people with the
offensive name of a faction ; and, to use his own language, that this
faction should be /ground into dust and ashes. Whom did Mr. Adams
mean to call a faction ? A majority of the yeomanry of America. For.
it was a fact not susceptible of any doubt, that a large majority of real
native Americans were opposed to his election, and his political opinions ;
which Mr. Harbour said he would denounce as being hostile to republi-
canism. For, although Mr. Adams was elected by a majority of three
votes, yet it was well known that the majority was produced by artifice
and coalition of federal officers, persons deeply concerned in funding and
banking systems, refugees, foreigners, (whose whole life had been but a
life of warfare against the principles of free government,) bankrupt
speculators, and, to complete the group, all those who could profit by
change and convulsion. Mr. Barbour said he would not be understood to
pass an indiscriminate censure against all the friends of Mr. Adams; be-
cause he believed there were as virtuous and as enlightened characters
friends to his election, as were opposed to it. Neither should he have
DEBATE ON VIRGINIA. RESOLUTIONS. 65
made any remarks upon the nature of parties, had not the gauntlet been
thrown: from that circumstance, he thought himselfv justifiable in taking
it up, and causing it to recoil upon the head of its author. He said he
supposed he was, one of that party, whose fate had been anticipated ; but
he felt an elevating pride when he was cl-assed with the names of Jefferson
and Madison ; names which to the latest time, so long as worth and real
patriotism should be respected, would cast a shade upon the author of
such sentiments. Mr. Barbour said, for his part he could not perceive
the connexion between the conduct of France, and the conduct of our own
government ; and although the friends of administration had been able by
their dexterity in the arts of delusion, to gain a momentary advantage ;
although the passions of the people were excited for the instant, by which,
reason, the noblest inhabitant of the human mind had been dethroned, yet
they (for the people think generally right), at last, under the influence of
truth, when generally disseminated, would regain their reason unclouded
by passion, and at that moment they would spurn from them, with inex-
pressible detestation, the authors of their delusion. He hoped, then, that
no more would be said of the conduct of France, in justification of alien
and sedition'laws. But the gentleman from Prince George had attempted
to alarm the committee into his opinions, by delineating the fate of the
island of St. Domingo. Fie told us that the fertile plains of that island
had been deluged with seas of blood, and strewed with mangled carcases
and mutilated limbs ; and that if the alien-law had not passed, by which
all dangerous aliens were excluded, the same fate might have befallen the
Southern States. The committee were almost taught to tremble at the
idea of their houses being wrapt in flames ; their property a prey to
rapine ; their lives to massacre ; their wives, their daughters, and their
sisters falling victims to the brutal and indiscriminate lust of the negro;
and in short everything to misery and ruin. But, Mr. Barbour said, he
respected too highly the good sense and judgment of the committee, to
suppose for a moment that attempts of that kind would succeed : he knew
they would be deemed the meagre, unimportant chink of the moment, that
would scarcely survive the instant that gave them birth. That gentle-
man's sensibility was aroused only by imaginary evils ; it was not at
leisure to deplore the situation to which the unfortunate aliens, by this law,
will be reduced. Instead of this class of people moving in the elevated
sphere of freemen, which they occupied before the adoption of this law,
they will be sunk into the despicable grade of slaves, whose destiny was
suspended upon the arbitrary nod of one man. Mr. Barbour said, the
committee were told, too, of a conspiracy, which had for its object a schism
in the empire, by which we were to lose the western country. Where
was the evidence of that 1 Before he was willing to legislate, he said, he
must have evidence of the fact, of a fact apparently so incredible, and so
derogatory to the character of his country. He believed the western
country, particularly Kentucky, was inhabited by as virtuous and as pa-
triotic characters as the world ever produced : men who possessed that
genuine and fervent regard for the cause of liberty that goes to elevate
human nature a grade in the scale of animated nature, from which they
look down with ineffable disdain upon such calumnious charges as those,
5
66 DEBATE ON VIRGINIA RESOLUTIONS.
Conspiracies, plots, and wild chimeras were always resorted to in justifica-
tion of tyrannic measures. The popular pretext of public good was the
auxiliary called in to palliate measures pregnant with public evil. And
too frequently under the mask of a zeal for the welfare of the com-
monwealth, were concealed designs which would eventuate in the destruc-
tion of the liberties of the people. But they had been told by the gentle-
man from Prince George, that the law was made for two characters,
to wit, Talleyrand and Volney ; and that those characters had, in conse-
quence of the same, sneaked off. Independent of the absurdity of the
principle, namely, the making a general law to suit a particular case, the
gentleman was most egregiously mistaken in point of fact; for Talleyrand
was minister for foreign affairs for France, and in France at the time the
law passed. How then the law could pass to operate on Talleyrand, was
to him astonishing. For the character of Talleyrand, Mr. Barbour referred
to the statement which had been made by the gentleman from Prince
William. It was sufficient to say, that so long as he was supposed to be
a martyr to the cause of monarchy, so long he was bosomed by Mr.
Hamilton and his party. As to Mr. Volney, he said, the cause of truth
and virtue required he should speak more at large. He had the pleasure
of seeing that meritorious character whilst in America, but he knew him
better by history than from personal acquaintance. He from maturity
had been influenced by the benevolent desire of ameliorating the condition
of mankind by illuminating the mind, and dispelling superstition. It was
for this sublime purpose we saw him traversing Asia, and sitting, in medi-
tative silence, amidst the ruins of Palmyra, drawing wisdom from experi-
ence, and developing the causes which contribute to the dissolution of the
elements of society, and the overthrow of empires, and his capacious
mind filled with materials of knowledge of the best kind. We saw him
returning thence to his native country, to publish to the world his ( acquire-
ments, as so many beacons by which those who sit at the head of affairs
might guide the vessel of state free from those shoals upon which they
have xso frequently shipwrecked. Unfortunately for this philosopher,
for France," and for the world, Robespierre was at this time at the acme
of power. Robespierre, the most infamous of mankind, always the
enemy to rational and genuine liberty, wherever it was found, confined
this friend to the species in the instrument of despotism, a gloomy jail.
By the working of events, a revolution takes place in France, by which
this sanguinary tyrant met the fate which all usurpers merit. Liberty
reared its head, and emancipated one of its votaries, the enlightened
Volney. No sooner was he free from incarceration, than "he left, once
more, his native country in pursuit of wisdom, and steered to Columbia,
once happy land. He explored this extensive continent, and returned
once more to Europe to analyze his knowledge, and to benefit mankind
by disseminating the useful information which he had acquired. This,
then, was the character against whom such unfounded calumnies have
been uttered.. But unless some evidence was exhibited, he should take
the liberty to say that they were the offspring of the gentleman's own
imagination, begotten by the phantom of delusion.
The gentleman from Prince George observed, that the power of making
DEBATE ON VIRGINIA RESOLUTIONS. 67
a law like the one under discussion should belong to Congress ; other-
wise, Congress would be dependent upon sixteen states. This doctrine
would perhaps do, if the gentleman was in Convention, and was ascer-
taining the powers which shoulo^be exercised by the Congress; but, the
committee were not inquiring what these powers should be, but what they
, were. This reasoning, he made no doubt, was urged in Convention ; but,
the representatives of the large states, which were but thinly inhabited,
were opposed to the power being concede'd to the General Government ;
and he had shown, in a former part of his argument, that the power of
restraining the migration of such persons as the states should think pro-
per to admit, was expressly inhibited by the Constitution. The same
gentleman descanted at large upon the conduct of France towards the
European powers. Subterfuges of this kind evidently demonstrated the
distress to which the supporters of this law were reduced. For what had
the conduct of France to do with an abstract inquiry upon the constitu-
tionality of the law under discussion? Arguments of this kind were cal-
culated only to inflame the passions at the expense of reason. But, since
the Committee had been driven into this subject unavoidably, Mr. Barbour
said he would examine what had been the conduct of France to the
European powers. Why, she had done to those powers what those
powers intended to do to her. She had subdued them, and out of the
rotten governments, under which those countries groaned, had established
four republican governments. The gentleman said, that the French in-
trigues succeeded only in republics, whilst in monarchies they had no
effect. This was a calumny against republican government, en masse,
and required serious attention and refutation.
Mr. Barbour asked, where was the republican government, the over-
throw of which that gentleman so much deplored ? Was there a republi-
can government in Europe 1 No ; there were some which had impudently
assumed the name ; but it was a fact not to be controverted, that in those
countries the governments were completely aristocratic ; than which, no
government could be worse. But perhaps that gentleman had become a
disciple of the new philosophy which had sprung up under the influence
of the present administration, the head of which had declared, that aris-
tocracy is the dictate of nature, is indispensable to the order of society,
and the happiness of mankind, (alluding to Mr. Adams's answer to the
address of the people of Harrison County.) If this principle were admit-
ted as orthodox, the world should lament the ruin of aristocracies; but, if
it were false, (which he believed the greater part of America would not
deny,) so far from mourning their downfall, it should diffuse general joy.
Mr. Barbour said he had now pursued the gentleman through all the argu-
ments which he had given into on the score of expediency, and trusted he
had demonstrated their fallacy. He would now call the attention of the
committee to a contrast he was about to draw between the law and the
Constitution. Let it then, for argument's sake, be admitted that Congress
had a power to make a law relative to aliens ; yet might not Congress
violate that right ? As for example, Congress have the power of laying a
direct tax, yet Congress might violate that right in laying a tax without
reference to the inhabitants of the state upon which the tax was to be laid.
68 DEBATE ON VIRGINIA RESOLUTIONS.
The alien-law, Mr. Barbour said, violated the sixth amendment of the
Constitution, (the substance of which was, " that no warrant shall issue,
but upon probable cause, and that, too, supported by oath or affirmation,")
in this, that the President, without probable cause, without an oath, and
barely upon suspicion, had a right to apprehend the alien, against whom
some mercenary informer may have lodged a complaint. It likewise vio- %
lated the seventh amendment, in this ; that by the alien-law the President
was invested with the power of consigning to banishment, without the for-
mality of trial, this unfortunate class of people, of which he. supposed we
had myriads amongst us, when by that amendment it is declared, " that
no person shall be held to answer for a capital or otherwise infamous
crime, unless on a presentment, or indictment of a grand jury."
By the eighth amendment it is declared, too, that in all criminal prose-
cutions the accused shall enjoy a speedy and public trial by an impartial
jury of his vicinage, and be informed of the nature and cause of the
accusation ; be confronted with the witnesses against him ; have com-
pulsory process for obtaining witnesses in his favour; and have the
assistance of counsel for his defence. It was only necessary to read the
alien-law, to show the palpable violations of the Constitution. No oath
or affirmation was requisite ; no presentment or indictment by a grand
jury necessary; no trial by jury; his accusation, conviction and punish-
ment, were all to be announced by the Presidential officer in one breath.
It was true, there might be a kind of mock trial before a tribunal filled
with characters selected by the President : a tribunal not under the solem-
nity of oath, not under the least responsibility to public opinion, but from
the nature of their institution, are taught to kiss the hand from whom they
receive their authority : a tribunal unknown to our Constitution ; and in
fact, as far as it went, was an epitome of the star chamber and high com-
mission courts. But, Mr. Barbour said, he had been told that the aliens
were not parties to the compact, and therefore were not entitled to the
benefit of the compact. He contended that by the law of nations, but
what weighed still more strongly upon his mind, upon principles of rea-
son and humanity, they were entitled to the benefit of the rights secured
under the Constitution. The Law of Nations, Vattel, page 171, section
135, declares that the sovereign authority of a state has no right to pre-
vent the migration of persons into its country without a good reason.
As for example, China has a right to refuse the admission of aliens, be-
cause its country is completely populated, and because the admission of
aliens would operate an insuperable injury to its citizens. But what good
reason could America assign for refusing admittance to strangers, with a
country extensive, fertile beyond exception, and uninhabited. Had not
the persecuted alien, then, a claim upon us not to be frittered away by the
ingenuity of sophistry? Mr. Barbour said, having shown that strangers
had a claim upon us, and that, by the laws of nations, they have a right
to come amongst us, he would proceed to prove that when they were in
this country, they were entitled to the benefit of the law. For this pur-
pose, he would refer to VattePs Law of Nations, page 160-1. It is there
said, that the law of the land is not only applicable to the particular sub-
jects, or citizens of the sovereign authority, but applies to all orders of
DEBATE ON VIRGINIA RESOLUTIONS. 69
people of every description. It appeared to him a doctrine of the most
cruel kind, and which he trusted he should never again hear re-echoed
from these walls, to attempt to narrow the operation of an instrument for
the purposes of despotism. A benign philosophy would dictate, that the
Constitution should receive a liberal construction, when the welfare of
thousands required it. But Mr. Barbour said, that aliens were parties to
the compact, so far at least as relates to security against oppression. For,
by coming to this country, they tacitly agree to be bound by the Consti-
tution and laws thereof. ITan alien committed an offence, how in ordi-
nary cases was he tried 1 As citizens. How was he punished ? As citi-
zens. Surely, then, as he was to be punished by the laws, he should be
entitled to their protection. And Vattel further mentions, that an injury
done a stranger should be punished by the sovereign authority, in as
exemplary a manner as if done to a citizen.
But it had been said, that the sending off of aliens was no punishment :
it was a kind of preventive justice. Language like this, was the offspring
of a cold heart and muddy understanding. What ! Was it no punish-
ment to banish a fellow-man from a country where he has invested his all 1
Where he has formed the strongest imaginable ties ? And in which he
expected to find an asylum from the fangs of despotism? And perhaps to
consign him back to the country, from the persecuting tyranny of which
he might have fled? Let those who advocate this doctrine, bring the case
home to themselves, and inquire if they would not conceive it a punishment
to be banished from a country which contained their all. Mr. Barbour
observed, that the alien-law had violated the Constitution in a very obvious
manner, by destroying the main pillar upon which all free governments
stand, namely, a separation in the three great elements of government.
By it, the President was invested with legislative, executive, and judicial
powers, which Montesquieu defines to be the essence of despotism. He
first gave his assent to the law as President. He then legislated in esta-
blishing a rule by which the alien is to be tried, and every rule was a law.
The law itself has established no rule; has pointed out nothing which the
alien shall avoid; nor yet prescribed anything which he shall do. The
President, in the gloomy, dark and inaccessible recesses of his mind, was
then to prescribe the rule, and make it known only when he intended to
punish under the rule ; there, then, he legislated. He then was to judge
whether the alien had violated his own rule, and if he should conceive or
suspect that he had, he was then to carry his own sentence into effect.
If he had been -called on to delineate a picture of frightful despotism, Mr.
Barbour said, he should think he had discharged the task by copying the
alien-law. The President of the United States was invested with the
pleasing and humane power of pardoning. What kind of a figure would
the President exhibit, when he had. accused and condemned th^ poor un-
fortunate alien, to be applied to for a pardon? Was it ever yet known in
a country which had participated freedom, and had progressed in juris-
prudence, that the same man or set of men had the power of condemning
and pardoning at the same time? The enlightened Montesquieu has ob-
served that it would create a confusion of ideas, and the world would be
at a loss to know whether the culprit had been acquitted, or condemned
70 DEBATE ON VIRGINIA RESOLUTIONS.
and pardoned. In consequence of the measures which had been pursued,
the executive branch of the government had acquired an undue preponde-
rance of power, which had derogated from the other branches; the result
of which was, that instead of their moving in the dignified sphere of
planets, they had dwindled into the pitiful character of satellites, which
played around the executive with servile complaisance. And the liberties
of the American people, which revolve around the Constitution as the
centre of their system, should that be destroyed, would be precipitated into
ruin likewise. America was destined, he said, to increase the already ex-
tended .catalogue of despotic nations, and we should be compelled to admit
the melancholy truth, that man is not susceptible of self-government, but
is doomed to be governed (he trembled whilst he related it) by arbitrary,
accursed arbitrary sway. But notwithstanding all this, we were told, Hail
Columbia, happy land ! That the people of America were the happiest in
the world ! What then, were the people to wait till the pressure of the
evil principle was felt ? No. As an elegant author expressed it, they augur
misgovernment at a distance, and snuff the approach of tyranny in every
tainted breeze. The political horizon of America, which some years ago
shone with undiminished lustre, and which attracted the admiration of all
the world, was now darkened with clouds of domestic usurpation, which
waited but for some incentive, to burst in dreadful violence upon our heads.
What an august melancholy scene was here ! That at the conclusion of
the eighteenth century, a time which twenty years ago. by the sanguine
admirers of the rights of mankind, would have been anticipated as the
birthday of a general jubilee of emancipation, when distant nations would
have heard and have quickened into public life by the sound, the Virginia
Legislature was brought to decide whether, even in America itself, the
birthplace and cradle of liberty, liberty shall be preserved, or whether,
bound hand- and foot as it was, it shall be offered up as a sacrifice upon
the altar of vice and ambition. Mr. Harbour then expressed himself in
the following strong and animated manner: Legislators of Virginia! The
voice of the people speaks to you; the eyes of the friends of liberty
throughout the continent, are upon you; and the friends of mankind
throughout the world are waiting in anxious solicitude the result of your
deliberation. The road to immortal honour is open before you; the tem-
ple of fame is within your reach, and the welfare of your country calls
eminently upon you. By the adoption of the resolutions you raise a ram-
part against the inroads of usurpation, and your names will be wafted
down on the stream of time, crowned with laurels, and as they pass, will
be hailed by a grateful posterity with plausive acclamations. But if you
reject, you give additional weight to the already overgrown power of the
general government, by which the liberties of the people will be sub-
verted ; apd in some after time, when our country shall consider us,
the people pointing you out shall say, there go the authors of our mis-
fortunes.
He then concluded by thanking the committee for the attention they had
'given him.
On motion, the committee then rose, the chairman reported progress,
asked and obtained leave for the committee to sit again.
DEBATE ON VIRGINIA RESOLUTIONS. 71
IN THE HOUSE OF DELEGATES,
Tuesday, December 18, 1798.
The House resolved itself into a committee of the whole House, on the
state of the commonwealth, Mr. Breckenridge in the chair, when Mr. John
Taylor's resolutions being still still under consideration,
Mr. MAGILL said, that he arose with sensations never before experienced
by him ; that he conceived the peace of the United States to be involved
in the decision which the committee were about to make ; for the question
appeared to him to be whether the states should remain united under the
federal Constitution, or that instrument which they were bound to support,
be declared of no force or effect ; that in delivering his sentiments to the
committee, he would address himself to the reason of the members, and
avoid an appeal to their passions; for if the opinion he advocated could not
be supported upon this ground, he would not resort to any other. That
he had attended to the arguments of the gentleman from Orange, and those
of the gentlemen who preceded him on the same side: with their eloquence
he was pleased, and their talents he admired, but the judgment he had
formed upon the laws, after the most serious reflection, so far from being
shaken, had received additional force by the manner in which the debate
had been conducted. When gentlemen of first-rate talents amuse the
fancy with eloquent harangues, instead of attempting to inform the under-
standing, to him it was evident that they thought their positions untenable.
He said we are to decide upon the constitutionality of the " alien and
sedition laws," as they are generally called, and in so doing are we not
erecting ourselves into a court of justice, particularly so as the resolutions
declare those laws null and void ; for where is the department of the govern-
ment, except the judiciary, that can exercise- this power? He said that
the present Assembly was chosen by the people for the ordinary purposes
of legislation, and he begged to know the source from whence their judicial
powers, even over a law passed by themselves, in a case where their juris-
diction was complete, could be derived. If, said he, it be admitted that
we cannot judicially act upon a law passed by this or any other Assembly
of this commonwealth, and that our courts alone can do so, where is that
law, point out that feature in the fe'deral Constitution, that gives to this
body the power now about to be exercised 1 He said that the public papers
had teemed with invectives against Congress for passing these laws. Could
gentlemen say this was a criterion to judge them by? He said, that in all
the publications he had seen, and the arguments he had heard used, the
authors had taken for granted what remained to be proved. Admit the
premises, and the conclusion may fairly be drawn. The gentleman from
Orange, Mr. Magill said, had observed that the President of the United
States was a friend to monarchy, or in favour of a monarchical govern-
ment. Admitting this, for argument's sake, to be correct, what relation,
said he, can it have to the subject now under consideration ? Will it en-
lighten the mind of a man when he is called upon to form an opinion upon
an important point, to have his judgment drawn from that object, by
72 DEBATE ON VIRGINIA RESOLUTIONS.
suggesting one foreign and entirely unconnected with it? He said, that
for his own part, Mr. Adams possessed his highest confidence ; that he
viewed him as the tried and true friend of his country ; that the happiness
of his fellow-citizens was his first object ; that he looked up to the, virtues
and talents of Mr. Adams with veneration, and would only add, that his
administration had in his opinion been pure and uncorrupt. These senti-
ments, though unpopular here, I ever have and will avow, said Mr. Magill
so long as the measures heretofore pursued, be continued. He then con-
tended, that the statement of the gentleman from Prince George, respecting
the rights of aliens, was correct, and the contrary one of the gentleman
from Orange not so, and gave his reasons for this opinion. He observed,
that he meant to be concise in his replies to the arguments against the alien-
law, as the gentleman from Prince George had opened that part of the
debate, and would, in concluding it, notice all such as he should omit. He
said that he adopted this mode, supposing that the opening of the sedition
act, which had been assigned to him, would take up as much time as the
House could on that day allow him. He then defined as necessary to a
perfect knowledge of the subject, the powers of the general and state
governments. He observed, that the only true and natural foundations of
society are the wants of individuals. He said this rule applied to the
states, considered as such, at the time this Constitution of the United States
was formed. The insufficiency of the old confederation, said he, evinced
their wants, and to prevent again experiencing these wants, this Constitu-
tion was formed. He observed, that to him the Constitution of the United
States should be thus explained, as giving to the Federal government a
control over the national affairs ; to the state governments, the care of
state or local concerns. Upon this definition, and the Constitution taken
together, he proceeded to inquire if the alien-law had violated the Consti-
tution in any respect ; and he agreed with the gentleman from Prince
George in his statement respecting aliens, that VattePs doctrine was solid,
and to be relied upon. He insisted, that the safety of a nation could not
be secured, without such a power as this law gave being deposited some-
where. He agreed with the gentleman from Spottsylvania, that the dis-
pute with France, if it could be avoided, ought not to be introduced ; but
how, said he, can this be done? The unjust and infamous conduct of
France, should make our government careful how its citizens introduce
themselves amongst us, with their diplomatic skill ; and to guard against
attempts of that nation and its citizens, this law perhaps was passed. He
then adverted to Volney and Talleyrand, of whom the gentleman from
Prince George had spoken, and said, that that gentleman had not been
correctly understood by the gentleman from Prince William, and others,
when they alluded to his remarks upon Talleyrand and Volney, The
gentleman from Spottsylvania had mentioned the independence of the
state governments at the time of the adoption of the Constitution. He
admitted that to be true, but said the argument was of no weight, unless it
could be proved that they were independent now, as their situation at that
period was the subject. He then made some remarks in answer to the
gentleman from Brunswick, upon the first clause of the ninth section of
the Constitution, restraining Congress from prohibiting migration ; and he
DEBATE ON VIRGINIA RESOLUTIONS. 73
said, the gentleman from Caroline had not relied upon that clause, but the
gentleman from Orange had. He said, that he thought the clause last
mentioned, related only to slaves, and his reason for thinking so, was
founded upon the language used in the latter part of the clause, and the
whole Constitution taken together. He then quoted the opinion of Mr.
George Nicholas, delivered at the time of the adoption of the Constitution,
in effect the same as his own. He here read the opinion delivered by Mr.
George Mason, in the debates of the convention in Virginia, in regard to
the clause referred to, respecting migration and importation extending to
slaves only. He took this to be the opinion of Mr. Mason, inasmuch as
his observations, as well as those of others, were confined to that descrip-
tion of persons alone. He then mentioned the alien-law of Virginia, not,
he s3id, with a wish that if it were erroneous, it should be a precedent,
but to show what was the opinion of the legislature of this state at that
time. They had been told, that the Legislature of Virginia had a right to
pass such a law, and that Congress had not. He contended on the con-
trary, from the Constitution, that the state had a power to pass such a law,
only until Congress should interfere, by passing one upon the subject. He
assimilated this to the case of citizenship, upon which laws had been passed
by the state, that were set aside when Congress passed a general law, by
the force of that law. He then said, that the clauses in the Constitution
of the United States, and in the bill of rights of Virginia, securing the trial
by jury, were couch'ed in general terms, and neither were ever supposed to
be infringed until the passage of the alien-law by Congress. The people
of this state had passed such a law for the same reason, as had induced
Congress to pass one, to wit, to insure domestic tranquillity. Let me ask,
said he, if here we ought not to pause, and not hastily condemn a former
legislature of our own state. He then proceeded to show, that by the
suspension of the writ of habeas corpus, (which the Constitution warranted
in a particular case,) the trial by jury was taken away even from a
citizen. Would not then, he said, the true meaning and spirit of the same
instrument allow it to be taken away from an alien, a person entitled to
no absolute rights, and who was no party to the compact, in a similar case.
He then stated at large, the proceedings which took place in the case of
the suspension of the writ of habeas corpus,- and obeerved, that a person
then charged, must remain in prison without a hearing, until the emergency
had ceased. That case then, he said, was in principle the same as the
alien-law. The cause for the suspension of the writ of habeas corpus
was temporary, and when the cause had no longer an existence, the effect
would also cease. He then contended, that when the alien-law had passed,
there was good cause to apprehend danger from without, and from aliens
within our territory: to guard against their attempts was proper. He
said, the gentleman from James City had urged the necessity of aliens
being informed of the rule of conduct which should govern them upon
their arrival in America. In reply to this, he, Mr. Magill, would observe,
that aliens must know that rule from the law of nations, which is a part
of the law of every country, and is simply this, "interfere not in the
governmental affairs of a foreign country, and confine your attention to
your individual concerns whilst in that country." He thought this power
74 DEBATE ON VIRGINIA RESOLUTIONS.
given by the law, of removing aliens, properly vested in the President.
He stated his responsibility, and the eminent services rendered by the
present President, together with his known attachment to his country, as
a pledge that he would not act cruelly or unjustly.
The gentleman from Caroline had argued upon the condition upon which
the Constitution was adopted in Virginia, and upon that point he had under-
stood him to say, that the condition being broken, we were no longer
bound by the ratification. This, Mr. Magill said, was an alarming doc-
trine. He then recapitulated his several arguments, in order, he said, to
impress upon them what he attempted to prove, and said, that he would
then consider the sedition-law : and here he requested the attention of the
committee, this law being in its nature particularly important, citizens
being affected by it. The freedom of the press, correctly understood", and
as it was considered by the framers of the Constitution, he contended was
not abridged by the law. He then read the sedition-act, and said the
passage of this law was opposed in Congress by those gentlemen who had
opposed the defensive measures adopted against a foreign nation, and in
Virginia it was reprobated on the ground of its being unwarranted by the
Constitution. He asked, is there by this law an addition to our penal code,
and said, that in his judgment no new offence was created by it, every-
thing it forbids being before an offence at common law. He said, here it
will be proper to inquire, whether the doctrines of the common law apply,
or form the basis of our laws : that they do so, he took to be clear and
evident; such was the opinion entertained in the Virginia Convention.
He said, that what the doctrines of the common law were prior to, and at
the establishment of the Constitution of the United States, must then be
the rule, and the term liberty of the press, as then understood, an impor-
tant consideration. He then read the history of the liberty of the press,
as laid down by Blackstone, in the fourth volume of his Commentaries, and
said, this then is' the history of the term freedom of the press. It was an
exemption from all power over publications, unless previously approved
by licensers. To show that it did not extend to an exemption from legal
punishment, according to the principles of the common law, he said, let
us again return to the same author : " Libels are malicious defamations
of any person, and especially a magistrate, made public, by either printing,
writing, signs or pictures, in order to provoke him to wrath." He pro-
ceeded to read Blackstone's definition, with the mode of proceeding against
persons charged with libellous publications. The liberty of the press, as he
had stated it, he said was essential to a free state, and drew the distinction
between the liberty and licentiousness of the press. He said, with this
definition of the freedom of the press, as it was before them, with Black-
stone's rational observations in their view, can we for a moment suppose
that Congress, when they concurred in recommending the third article of
the amendments, and the assemblies of the different states, when they
ratified and approved that article, intended to procure an exemption for
writings false, scandalous, and malicious, from punishment, according to
the principles of the common law. Doth not the judicial power of the
United States expressly extend to controversies, to which the United States
shall be a party? Can there be a case, in which the United States shall
DEBATE ON VIRGINIA RESOLUTIONS. 75
be called a party, if not to those which are offences against the United
States, their people and government? Was it intended that the govern-
ment should be destitute of the means of defending itself or its members?
Have not Congress power, " to make all laws necessary and proper for
carrying into execution the powers vested by the Constitution in any
department of the government of the United States?" He said, let us now
see what construction hath been put upon the twelfth clause of the bill of
rights in Virginia, by the Assembly of that state, for a law by that body is
an express declaration of the opinion it entertains. The twelfth clause is,
" That the freedom of the press is one of the great bulwarks of liberty.
and can never be restrained but by despotic governments." The Consti-
tution of the United States says, in the third article of the amendments,
" Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof, or abridging the freedom of speech,
or of the press, &c." In substance the language is the same. Amongst
the laws passed in 1792, is one to be seen in page 219 of the Revised
Code, entitled, " An act against divulgers of false news ;" which law
enacts, " That whereas," &c. He then read the law. The legislature
was then of opinion, that divulgers of false news, whether printers or
others, were not protected by this clause in the bill of rights. Are we, he
asked, wiser than a former Assembly ? This law in our code, upon being
compared with the law of Congress, will be found much more severe than
the latter. By the law of Congress, the accused may give in evidence in
his defence, the truth of the matter contained in the publication charged
against him, &c. But, said he, is it known to the people that in a prose-
cution for a libel in Virginia, under the state laws, you can neither plead
nor give in evidence the truth of the matter contained in the libel. He
said, in a civil action, the truth could be pleaded in bar of the suit, and
upon proving the plea, a verdict would be found for the defendant. He
here pointed out the mode of proceeding by indictment against a person
accused and tried under the state law for a libel ; and said here is a mate-
rial distinction between the two laws. He contended, that the freedom of
the press was not abridged, no new offence being created. He asked, how
can the officers of government carry the laws of the union into effect,
without possessing the confidence of the people ? He said, what is this law
designed to prevent, is it the circulation of false and malicious slanders?
And if so, can any man wish to exercise such a right, even admitting him
to possess it, the bare use of which would cover him with infamy? He
said a law passed by us is right, but a similar law passed by Congress,
having equal power upon the subject-matter, is wrong. He repeated his
several arguments in order, and said that the committee had been so
indulgent, that he would now pass on to the resolutions offered : And here,
he said, it appeared to him that the wisdom of man could not devise a
more certain mode of preventing a repeal of the laws complained of, than
that which the resolutions pointed out. Are gentlemen serious, he said,
in wishing a repeal ? He said, the moment that the paper under considera-
tion was adopted, he should consider as giving birth to a serious and
alarming contest. He said, are we sincere in our professions of friendship
to the government of the United States? If so, why snatch with avidity
76 DEBATE ON VIRGINIA RESOLUTIONS.
an opportunity of resorting to a measure violent in its nature, before we
have made an attempt, moderate and temperate. Would this conduct, he
said, be pursued by an individual wishing to be reconciled to his friend 1
He said the resolutions are certainly incorrect. The states alone are
parties! What, are the people entirely excluded? He contended, that
there is not a state in the Union that hath so unequal a representation in
the state legislature as Virginia. Are the people of Virginia represented
according to numbers? No ! It is the name of a county. Two hundred
freeholders have the same voice in this Assembly, as one thousand. This
statement, he said, the committee knew was accurate, and the two counties
could be named. He then referred to the third amendment to the Consti-
tution of the United Slates, which secures the right of petitioning for a
redress of grievances. The states, he said, could never be injured whilst
that power existed; and could he be convinced that, the people were
aggrieved, he would join in a constitutional, moderate way to obtain a
redress. He said, the Kentucky resolutions, as did ours, declared these
laws null and void. If they are so, let the proper courts say so. He then
proceeded to show that the states could not form a coalition ; for by the
Constitution they are prohibited from entering into any confederacy, or
making any agreement with each other. In substance, he said, this was
forming a confederacy. He then read an extract from the Federalist, in
the writing of which the gentleman from Spottsylvania had said Mr. Madi-
son was concerned.
He said he thought the laws constitutional, and then enumerated the
consequences of adopting the resolutions before the committee. He en-
larged upon this subject, and again entreated the committee to pause and
seriously to reflect upon the awful question before them, for such he really
considered it.
MR. FOUSHEE arose next, and asked if it would be necessary for him
to tell the committee that the subject was important, after what the gen-
tleman last up had said : " that peace or war was to be the consequence."
And being so important, he (Mr. Foushee) thought that they should most
seriously consider the matter previous to a decision on the resolutions be-
fore the committee. He then made some remarks upon the quotations
from the law of nations, used by Mr. George K. Taylor and Mr. Magill,
to show that sovereignty must reside in every independent nation, and the
power consequently attached to sovereignty. This doctrine he did not
deny, but said, if the states individually were sovereign before and at the
time of the adoption of the Constitution, which he contended they then
were, and still are, he asked could any one lay his finger on that part of
the Constitution of the United States which had taken away their sove-
reignty in those cases embraced by the alien and sedition laws? That the
Constitution was a limited compact, and contained no powers but those
granted. But the common law and implication had been resorted to by
gentlemen, in support of a contrary doctrine. By admitting the common
law and this construction to have force, he said, Congress might, under
these, and the terms general welfare, pass any act whatever ; thereby set-
ting the Constitution at naught, and making it a dead letter; and nothing
DEBATE ON VIRGINIA RESOLUTIONS. 77
would be reserved to the states, or to the people. He was alarmed, he
said, at the method which the gentleman from Prince George had adopted,
in selecting the alien from the sedition law, in his arguments, and con-
fining himself to the former. In doing so, he (Mr. Foushee) feared he
discovered an intention, under the guise of attacking aliens only, who
were certainly the most unpopular inhabitants amongst us, to lay a foun-
dation for inflicting similar injuries, in future, on such of our citizens as
might give offence, and that he thought the selection of this law might
keep the danger he apprehended out. of general view. Mr. Foushee made
several observations in answer to Mr. G. K. Taylor, respecting the rights
of aliens; and observed, that, by the alien law, they were deprived uncon-
stitutionally of liberty, which he (Mr. Foushee) contended was one of
their rights, as well as life and property, to which it was acknowledged
they were entitled ; for the loss of their liberty, however, he said, the
gentleman from Prince George expressed no pity nor offered any excuse,
except one, which might be the plea of any tyrant. Mr. Foushee then
said, he thought and feared, that the alien law was but a step to something
else, to wit, a precedent under which citizens might in future be attacked.
Danger too, he said, had been assigned as the cause of passing those laws.
That cause, he observed, might be raised up at any time by an artful
President, who could perhaps previously get such a treaty made as to suit
his purpose; and, under the idea of danger, to produce a state of prepara-
tion, by which his power might be increased, and which might become
injurious by the extension of influence arising from patronage; for in-
stance, &c. What direful acts and effects of usurpation, said he, may
not ensue under the pretence alone of danger? The unconstitutionally of
these laws, he observed, had been so fully proved, that it would be unne-
cessary then for him to say anything further on that head ; and that, if
there was an act at which the human mind could revolt, it would be, in
his judgment, the denial of such unconstitutionality. He then said, that
if the doctrine of some gentlemen on the floor of Congress, and that con-
tended for by a certain modest pamphleteer, as lately published, and which
some days past had been so copiously detailed by the member from Prince
George, and which he (Mr. Foushee) had since seen, could be established,
he admitted the resolutions must be wrong; but, as he was well satisfied
such doctrine could not be supported, he thought the resolutions ought to
receive the sanction of the committee. He mentioned the subject of impli-
cation again, and dwelt on its direful consequences, many of which he
particularly enumerated. He then proceeded to answer quotations made
by gentlemen from certain laws of Virginia, particularly the alien-bill,
endeavouring, as he supposed, to deduce from thence, power to 'the general
government over aliens. He urged, that the latter particularly was a
proof that the state, and state only, had a right to pass such a law ; and
consequently, that Congress had not the right.
But, he said, the gentleman from Prince George had urged, that if Con-
gress had not the power of passing such a law, Virginia might admit
under the description of aliens, an army of soldiers, for instance, Bona-
parte and his whole army (if they could get out of Egypt). Mr. Foushee
asked, what idea must that gentlemen have of the virtue and patriotism of
76 DEBATE ON VIRGINIA RESOLUTIONS.
his fellow-citizens, in urging such an argument? He said, it might justly
be called, in the gentleman's own words, a monstrous idea. He then
asked, where would those doctrines contended for by gentlemen in opposi-
tion to the resolutions, leave us? Would it not be in a mass of consolida-
tion ? Could not freemen, he said, assert their rights, without being
charged with an intention or wish of dissolving the government of the
United States? He then stated the observations of several gentlemen, in
regard to the consequences of opposition, as they termed it. That he dif-
fered, however, from them in regard to the consequences they apprehend-
ed, to wit, an invitation of foreign invasion, &c.; and he contended strongly
for the right of free -communication and consultation. He observed, that
the gentleman from Prince George had said, that these acts of Congress
having been passed by a majority of that body, the members of which
had taken an oath to support the Constitution of the United States, could
we suppose they were unmindful of it? The members of this Assembly,
' Mr. Foushee said, had taken the same oath, in addition to other obliga-
tions. That they must therefore pursue their duty, in discharge of their
solemn obligations to this state and the United States, without regard to
the conduct of other people, although they may have acted also under
oath. He then recapitulated various arguments of those who approved
the resolutions, and observed, it had been said by the member from Prince
George, that this law (meaning the alien-law), although passed, would
affect very few comparatively, indeed it would be almost as one man only.
In this light, he (Mr. Foushee) considered it so much the more to be
dreaded, as an exertion for its repeal might not be sufficiently made, and
thus a precedent be established. Small beginnings, he said, often pro-
duced great ends, and required, therefore, to be more narrowly watched.
He then made a comparison between the structure of the Constitution
and the universe. The latter he represented to be a system composed of
atoms. If, said he, it were once to be ascertained that we had a power
to destroy or annihilate one atom, it would soon be seen that we had a
power to destroy more atoms ; and thereby we should establish a princi-
ple, which might go to the total destruction of the universe. The same
consequences as to the right of power over the Constitution, he said,
might ensue, for the power over each was limited. Danger too, he said,
had been repeatedly assigned as a cause for those laws. He again asked,
what would be the consequence of subscribing implicitly to that doctrine?
The principles of such a measure, he repeated, would be to establish in a
designing man, or set of men, at the head of the government, all power,
which might be continued, even when the danger spoken of no longer
existed. Precedent, he again said, would be thus founded and resorted
to ; and be urged upon us on every occasion, by saying, the same thing
has been done before. But if danger alone, added he, had been the cause
of passing those laws, and they could be justified, even on that score, that
danger, he said, was now nearly over, or greatly lessened. He then re-
ferred to historical facts to prove the force of his remarks. These, he
said, were worthy of being attended to. He again declared himself in
favour of the resolutions, especially the first. After which he observed,
that he had confined his observations generally to the alien-law, as he
DEBATE ON VIBGINIA RESOLUTIONS. 79
had understood the gentleman from Prince George to say, early in the de-
bate, that the arguments on the sedition-law would not be gone into, until
those on the alien-law had been urged and decided on. However, he said,
he considered the sedition-law of much the greater consequence of the
two, as the evils were by that law, in his judgment, much aggravated ;
and that all the arguments urged against the alien-law applied with accu-
mulated force against the sedition-law; and that he could as yet only
account for the selection of the alien-law in argument, as being the most
distant from, and least to be felt by, the citizens at large. He then pro-
ceeded to state the purport of the sedition-law, the construction which had
been given to it, and the consequences resulting from its operation. And
although he admitted, that speaking might not be expressly enumerated,
yet he said the free communication of opinion was prevented, and particu-
larly in the mode of writing, printing, &c. He then stated the beneficial
effects resulting from a free communication of sentiment, and the greater
benefits still, flowing particularly from the freedom of the press; by means
of which, knowledge was most extensively diffused. He made several
observations in favour of the manly language of the resolutions, particu-
larly the first, as holding out our express determination to resist usurpa-
tion by every constitutional mode, as well as invasion; and which he
thought would be the most effectual means of curing the present evil, as
well as preventing similar attempts in future. He then made a short re-
capitulation of the unconstitutionally and inexpediency of those laws, and
observed, that injustice and deception were particularly evident, in his
judgment, on the face of the sedition-law, to wit : four specified acts,
" writing, printing, uttering, and publishing," independent of other prohi-
bitions, were made punishable. That it had been urged, those various
acts might be justified, if they contained the truth. He urged in reply,
that the justificatory clause only enumerated two items, " writing and
publishing." That printing and uttering were not in that clause; and
therefore, justification could not be pleaded in excuse for a prosecution
founded on either of these.
* Mr. BROO^J? arose next, and said that he never could consent to sanction
the passage of resolutions having so alarming and dangerous a tendency
as those which had been presented to them by the gentleman from Caro-
line ; and before he gave his vote upon the subject, he would beg leave to
state to the committee, without adverting to the particular merits of the
laws that were the subject of those resolutions, the reasons that would
govern him in his vote upon that occasion.
Resolutions such as these, saicrMr. Brooke, declaring laws which had
been made by the government of the United States to be unconstitutional,
null, and void, were in. his opinion, in the highest extreme dangerous and
improper, inasmuch as they had not only a tendency to inflame the public
mind ; they had not only a tendency to lessen that confidence that ought
to subsist between the representatives of the people in the general govern-
ment and their constituents, but they had a tendency to sap the very foun-
dation of the government, by producing resistance to its laws, and were in
the eyes of all foreign nations evidence, fatal evidence, of internal discord
80 DEBATE ON VIRGINIA RESOLUTIONS.
in this country, and of imbecility in our government to protect itself against
domestic violence and usurpation. For these reasons, he said, he was
opposed to these resolutions, and did not hesitate to declare himself equally
opposed to any modification whatsoever of such resolutions, that might be
intended as an expression of the general sentiment upon this subject,
because he conceived it to be an improper mode by which to express the
wishes of the people of this state upon the subject. By what mode then,
said he, were this Assembly to understand and to express the will of the
people of Virginia upon the laws that had been called in question ? By
an act of the Virginia Legislature, declaring these laws to be unconstitu-
tional, null, and void? No ! But by the laws of the general government,
to whom the power properly belonged of making these laws ; and by which
their will had been already expressed. The government of the United
States, he said, was one organ of the will of the people ; the Legislature
of Virginia was another organ of the public will. Those two organs, then,
of the public will were at variance. One of these organs made laws for
the government of the United States : another of these organs, the inferior
one, declared these laws to be unconstitutional, null, and void ; and the
question then was, which of these organs were they to obey ? The govern-
ment of the United States, he said, most indubitably ; because in the govern-
ment of the United States, the representation of the people of this state is
more pure and more equal than it is or could possibly be in the slate
government, under the existing state Constitution. In the general govern-
ment, said he, every thirty thousand persons are represented ; but. in the
state government, from the 'great inequality in the representation, under the
existing state Constitution, it was utterly impossible, under existing circum-
stances, by this mode to express the sentiments and wishes of the people
of Virginia upon the laws that had been called in question. In some
counties in the state, said he, fifteen hundred or two thousand freeholders
constitute the number of electors, who are entitled to but two representa-
tives : in other smaller counties, one hundred and fifty or two hundred
freeholders constitute the number of electors, who are entitled to the same
number of representatives : so that, from this apparent inequality in the
representation, circumstanced as he was, and a number of other gentlemen
in the House, how could they form any sort of estimate of the general will of
the people upon the subject of the laws in question. In the county of Prince
William, he knew not what the people thought of the laws. The repre-
sentation from Loudoun, Berkeley, Frederic, and many other large coun-
ties, were in the same situation. To what standard then were they to
resort in order to ascertain the general will upon the subject ? To the
laws themselves, he said, he would again reply, which have been passed
by the general government, where we are equally represented, and to
whom the authority properly belongs by the Constitution. Since the re-
presentatives of the people in the general government, then, had made
these laws, as a good citizen he would obey ; as a good citizen he valued
the Constitution of the United States, which he had sworn to support, and
which he conceived to be invaded by the resolutions before them ; and
when the people of that part of the country which he had the honour to
represent, became so exceedingly degenerate, so lost to all regard for the
DEBATE ON VIRGINIA RESOLUTIONS. 81
great advantages and benefits resulting from a connexion between the
states under the federal Constitution, as to give him instructions to vote
for the adoption of resolutions having so alarming and dangerous a ten-
dency as those which had been offered by the gentleman from Caroline,
he should go in mourning for them ; he should bid adieu to legislation,
and seek an asylum in some other region of the globe, among a race of
men who had more respect for peace and order, and who set a higher
value upon the blessings of good government. But sensible as he was
that his constituents would have discernment and patriotism enough to
think with him that the resolutions offered for our adoption by the worthy
member from Caroline, teem with principles hostile to the very existence
of the general government ; that they would think with him that any at-
tempt in the state legislature to control the operations of the general go-
vernment by the adoption of resolutions inviting the sister states to a co-
operation in resisting its laws, was equally dangerous and improper as it is
unnecessary, he should give a negative to these resolutions, and before he
sat down, beg leave to offer a resolution as a substitute for those which had
been presented by the member from Caroline. He offered it, he said, at
this stage of the business, because the tocsin of rebellion had been that
day sounded in the House by the resolutions accompanying the Governor's
letter from the state of Kentucky. The sooner then, he said, our de-
termination not to co-operate in resisting the laws of the general govern-
ment should be announced to that state, the sooner our determination to
support the American government should be announced to the nations of
the earth, the better. And for this purpose he would offer the resolution
which he had before referred to. He then read his resolution, in the fol-
lowing words : " Resolved, That as it is established by the Constitution of
the United States, that the people thereof have a right to assemble peace-
ably, and to petition the government for a redress of grievances, it there-
fore appears properly to belong to the people themselves to petition
when they consider their rights to be invaded by any acts of the general
government; and it should of right be left to them if they conceive the
laws lately passed by the Congress of the United States, commonly called
the * alien and sedition bills,' to be unconstitutional, or an invasion of
their rights, to petition for a repeal of the said laws." After reading the
said resolution, Mr. Brooke handed it in to the clerk's table, where the
same being again read, was laid upon the table.
On motion of Mr. Johnson, the committee then rose, the chairman re-
ported progress, asked, and had leave for the committee to sit again.
IN THE HOUSE OF DELEGATES,
Wednesday, December 19, 1798.
The House resolved iftelf into a committee of the whole House, on the
state of the commonwealth, Mr. Breckenridge in the chair, when Mr. John
Taylor's resolutions being still under consideration,
6
82 DEBATE ON VIRGINIA RESOLUTIONS.
Mr. POPE arose and said, that he was not accustomed to make apolo-
gies ; but that he looked upon it as necessary, after what he had said
before on the subject. He could assure the committee, that what he had
said at first, was not intended as a speech ; and he had no doubt but that
it was so understood by others. The observations were of a ludicrous
turn, and intended only as an answer, of that kind, to the gentleman from
Prince George's introducing the French into the debate. This he thought
not proper ; and the object of his former remarks therefore, was to treat
it in a ludicrous manner. But on the present occasion, he said, he consi-
dered himself as called upon by his colleague. He would speak, there-
fore, while the thing was fresh. And in order that he might not be mis-
taken in it, he had noted the substance. He meant not, he said, to go
into the subject before them. There had been enough, he thought, in the
harvest-field already. He himself would only glean a little. His col-
league had said, that he was not instructed : but that if his constituents were
so degenerate, or debased, he (Mr. Pope) was not positive which of these
terms he had used, but it was no matter which, it was the same thing, as
to instruct him to vote for such resolutions as those which had been offered
to them by the gentleman from Caroline, he would go into mourning;
that in case the resolutions were adopted, it would be, in his opinion, no-
thing more than the tocsin of rebellion ; and in such a case, he would go
to some other country to seek an asylum. Mr. Pope then observed, that
he would pause to give an opportunity for correction, if he had misstated
anything. But as he was not corrected, he said he would proceed to
reason from those observations of his colleague. He considered them as
applying to himself, being one of those in favour of the resolutions ; but
still he did not believe the gentleman had intended them as such. He
knew him better. However, he said, both that gentleman and the gentle-
man from Frederic, whose coolness and moderation must be admitted,
had sounded the alarm : they had called the resolutions the tocsin of re-
bellion : they would be drawing the sword as it were, and that we might
date the destruction of the liberty of the people from the day on which
they passed. He then proceeded to read the resolutions offered by the other
side (meaning those offered by Mr. George K. Taylor), 'and to comment
on the language of them. The gentlemen who were in favour of these,
he said, displayed boldness. Could they be afraid, then, of the resolutions
offered by the gentleman from Caroline. There was something in that
he did not understand. He said he must make a deduction from it. The
gentlemen surely must be hypochondriac. He compared their case to the
conceit of Don Quixotte about the windmills ; otherwise they could not be
alarmed about our having an army of Frenchmen at our doors. His
colleague, he said, had observed that we were more equally represented
in Congress than in this Assembly. In answer to which, he asked, if the
people of New-Hampshire could more equally represent us than the
Legislature of this State. He then stated what was the usual language of
the eastern people in Congress respecting the Virginians. They were
called by them disorganizes, jacobins, &c. Heathen proceeded to show
which of our members in Congress had voted in favour of those laws, and
concluded that Mr. Evans was the only one, General Morgan and Mr.
DEBATE ON VIRGINIA RESOLUTIONS. 83
Machir, as well as he could recollect, at the time of the passage of the
laws, being either at home, or on their way home. So much then, he
said, in answer to the observations of his colleague. He then proceeded
to answer the observations of the gentleman from Frederic, in regard to
the gentleman from Prince George's introducing the French into the de-
bate. The gentleman from Frederic, he said, seemed to disapprove it.
He (Mr. Pope) did so too. He could not imagine how the gentleman from
Prince George, himself, could think it proper. And how happened it, that
this gentleman could not, in the course of his reflections think of Ireland
too. But British enormities, he supposed, would not suit his purpose. He
then proceeded to enumerate them ; and afterwards adverted to the quota-
lions made from Publius, by the gentleman from Frederic, respecting a
resort to be made to the people in such a case as the present one. He
(Mr. Pope) thought that the Legislatures ought to take up the matter first;
and the people only in the last resort. He stated the nature of the bargain
made, at the time of adopting the Constitution, which was, that of the
people giving up certain rights, and reserving the rest to themselves. This,
he said, was proved by the twelfth amendment, which he read. He then
observed that the greater part of the Constitution extended to the prohibit-
ing of powers to the States. This amendatory clause, therefore, reserved
to them what was not prohibited. He then read the resolution offered by
Mr. Brooke, and observed, that the gentleman from Frederic had also
acknowledged the people's right to assemble. But how did that right
stand ? The article securing it, he said, was invaded. He stated an in-
stance of his receiving a wound in his left breast ; in such case he would
be less able to protect himself from receiving a wound in the right breast,
or elsewhere. This he compared to the case of the clause above referred
to,and declared that our most important rights, secured by that clause,
were destroyed. Of what account then would be the right of petitioning?
If they were to lose the resolutions offered by the gentleman from Caro-
line, he said, he would pronounce our liberty to be gone. But whenever
that was mentioned, he observed, that many of the members on the other
side would frown and spurn at it. He then made several contemplative
observations upon the consequences of our rights being destroyed, and
afterwards observed, that he would recur to that part of the speech of the
gentleman from Prince George, in which he had introduced the goddess
of liberty ; upon which Mr. Pope concluded his observations in the fol-
lowing words: "Methinks I heard that gentleman say to this fair*goddess,
by your name we aroused the American people to oppose the tyranny of
Great Britain ! By your name we brought into the field large armies !
By your name we drove from our country the mercenary troops of George
III. and established our independence! We have now no further use for
you : we only meant to change men, not measures."
Mr. DANIEL said, that he stood up to express that opinion, which his
feelings and his judgment compelled him to render on this occasion. He
said, he did not flatter himself, that he should be able to afford any con-
siderable aid to the discussion, or to give very material information to
the committee. But the importance of the question, and the solemnity of
84 DEBATE ON VIRGINIA RESOLUTIONS.
the appeal, which had been made by the people to the Assembly, in his
opinion, required a liberal discussion to be had ; that the subject, being
contemplated in various points of view, might be the better understood.
He should therefore beg the indulgence of the committee, while he took a
short view of the subject. In doing this, he said he should follow the track
which had been led by the gentlemen opposed to the resolutions before the
committee, beginning with the " alien-act" so called ; and first, with an
examination of the arguments of the gentlemen from Prince George and
Frederic. He said, it must have been observed, that in the progress of
their observations, these gentlemen had assumed three principles, which
could not be yielded to them, to wit : that the government of the United
States was a consolidated government, that the doctrine of implication
supplied it with all necessary powers, and that the necessity and expedi-
ency of any measure authorized its adoption. These principles, he said,
were assumed in aid and maintenance of their arguments, although they
were not stated in express terms. But it would be easy to show, that the
government was not a consolidated government in principle, however it
might be in practice; that the doctrine of implication could not extend the
powers of government beyond the specific grant of the Constitution ; and
that no necessity or expediency ought to authorize a violation of the Con-
stitution.
The Constitution of the United States, he said, was a deputation of
power from the several States, for the purposes of a Federal Government;
wherein the several states were sovereign and independent as to powers
not granted, and the Federal Government sovereign and independent as
to those powers which were granted. The doctrine of implication could
not increase the powers of the Federal Government, but could only go,
as it was expressed by the Constitution, to authorize it to make such la,ws
as might be necessary to carry the powers granted into effect. Having
premised these things, he proceeded to examine the arguments which had
been urged in favour of the "alien-act."
The gentleman from Prince George, he said, prefaced his observations
on this subject, by saying that this was an act of the Congress of the
United Stales, in which were combined the wisdom and deliberation of all
America ; that the determination of this combined wisdom and deliberation,
was the strongest evidence of the constitutionality of the act, and that it^
was therefore dangerous for us to interfere on this subject. Mr. Daniel hoped
this modft of reasoning would make no impression on the committee. He
said, it was an argument that would equally apply to every possible mea-
sure of the Federal Government; and by this rule, any act of the govern-
ment, however palpably violating the Constitution, and prostrating the
rights and liberties of the people, might be maintained. It might be said
of every act, that 'the combined wisdom and deliberation of Congress had
sanctioned it.
The objections which that gentleman made to the mode of remonstrance
adopted by the resolutions, he said, had already been so handsomely and
conclusively answered by a worthy member, (Mr. Mercer,} who preceded
him in this discussion, that there was no necessity for him to give them
any attention.
DEBATE ON VIRGINIA RESOLUTIONS. 85
The same gentleman, he said, in maintaining the constitutionality of
the "alien-act," had observed, that aliens had those rights only in the Uni-
ted States, which they have in other countries by the law of nations ; and
produced Vattel to show, that the sovereign of any nation had a right to
prohibit the entrance of strangers into its territory ; to prescribe the con-
dition upon which they may enter ; to command their departure when
necessary; in short, that it was matter of grace, and not of right, that
strangers were suffered to enter the territories of any nation.
If this doctrine, said Mr. Daniel, be admitted true in the extent in which
the worthy member quoted it, it was easily seen and could not be over-
looked, that the authority applied to a consolidated government, where
there was but one sovereign of the nation ; but it could not apply to the
United States, where there exist the several sovereignties of the state
governments, and the sovereignly of the Federal Government : of the state
governments, as to powers not granted : of the Federal Government, as to
powers which are granted in the Federal Constitution.
But, said Mr. Daniel, this power over strangers, resulting from the right
of domain to every nation, and which every independent nation will exer-
cise, does rest somewhere among the American people. It remained, then,
to be inquired, where this power was lodged in the distribution of powers
among the several sovereignties which existed in the United States, in the
manner which he had before stated? The Constitution, he said, gave the
answer. By section ninth, article firsi, it was declared, that " the migra-
tion or importation of such persons as any of the states now existing, shall
think proper to admit, shall not be prohibited by the Congress, prior to the
year 1808." Thus the power of admitting aliens into its territory, was
left to the several states, respectively. It followed then, that each state
had the right to prescribe the terms and conditions upon which aliens
should be admitted, and was the judge when those tei'ms and conditions
were violated. Aliens, said he, are admitted into the territory of a nation
or state, upon certain conditions. They could not therefore, be sent off,
or commanded to depart, without injustice, so long as they observed the
conditions upon which they were admitted. That pou-er, which was the
sovereign judge of the propriety of admitting aliens into its territory, must
be the sovereign judge of the necessity and justice of send-ng them away.
This necessity and justice could not exist, so long as the conditions, upon
which they were ad milled, remained unbroken. Each state had this
power over its respective territory, by the clause of the Constitution which
he had just recited. Each state, said he, was therefore, the sovereign judge
of the propriety and justice of commanding aliens and strangers to depart
from the limits of its respective territory.
But, said he, the gentlemen contend, that this article of the Constitution
cannot apply ; and here they d-ffer in their construction ; the gentleman
from Frederic maintaining, that this clause related only to the importa-
tion of slaves; the gentleman from Prince George insisting, -hat this
clause does only secure to the stales the right of admitting aliens, but does
not declare that Congress shall not have power to send them away. He
said he would examine the objections as they stood in order. With re-
spect to the opinion of the member from Frederic, (Mr. Magill,) the words
86 DEBATE ON VIRGINIA RESOLUTIONS.
of the clause, " migration or importation," were, from their very terms, a
sufficient refutation : and he believed, if they were to seek the reason why
this clause was inserted in the Constitution, they should find, that the
Southern States insisted upon it, not only to secure their right of continuing
the abominable slave-trade, but that they might also have it in their power
to encourage and effect the settlement of their back lands. The gentleman,
he said, had urged no reason of his own, in support of the opinion which
he gave, but read to the committee parts of the speeches of Mr. Mason
and Mr. Madison, delivered in the Virginia convention, when the Consti-
tution was under discussion. But, said Mr. Daniel, when this document
was examined, it would be found that those gentlemen, in the parts of
their speeches to which the worthy member referred, did simply state,
that the right of continuing the slave-trade was secured by this clause to
the Southern States, and that they did not advance any sentiment or idea,
which could, in the remotest degree, maintain the opinion, that this clause
related to the " importation of slaves only, and did not relate to the mi-
gration" of aliens into the several states.
With respect to the objection of the member from Prince George, (Mr.
G. K. Taylor,) that although this clause secured the right of admitting
aliens to the several states, yet it did not deny the right of Congress to
send them away, it might be observed, that the objection itself admits the
sovereign power of the states to permit strangers to enter their respective
territories. He said he had before endeavoured to prove that this power
involved, necessarily, the rights of prescribing the conditions upon which
aliens might enter, and of controlling them after they had entered the ter-
ritory of any particular state. But to meet the objection more pointedly,
he would take a view of the powers of any particular state, unconnected
with and separated from the other states. Virginia, for instance, indepen-
dent of her federation and union with the other states, would be completely
sovereign, and have all possible power and right on this subject to admit
aliens into her territory, and to control and send them away at pleasure,
regarding only the rules prescribed by the law of nations. He would now
ask what power and right Virginia had given up on this subject, in her
connexion with the other states, by the Federal Constitution ? It was
yielded by the gentleman that she had power and right to admit aliens
into her territory. He again demanded, had she granted the power and
right of sending them away, to the general government? But, said he, it
is declared by the twelfth amendment to the Constitution, that " the
powers not delegated to the states by the Constitution, nor prohibited by it
to the United States, are reserved to the states respectively, or to the peo-
ple ;" therefore, he insisted, this power of sending away aliens from the
territories of the particular states, not being delegated to the United States
by the Constitution, remained with Virginia, as it respected the limits of
her own particular territory. But, said the gentleman from Prince
George, Mr. Daniel continued, this article of the amendments must be
understood that whatever is not expressly reserved to the states is given
up to the Federal Government, if necessary. Besides the perversion of
the plain meaning of this article, by this construction, said Mr. Daniel,
the gentleman should have remembered that he stated in his argument
DEBATE ON VIRGINIA RESOLUTIONS. 87
that a construction which leads to absurdity was not true. This construc-
tion would make this article of the amendments answer no purpose ; it was,
therefore, he joined with the gentleman, absurd and untrue.
The powers of the federal government being expressly defined, " it was
true as a general principle," that powers not granted were retained by the
states, said Mr. Daniel ; but so jealous were they of their rights, and so
fearful of the greedy doctrine of implication, that this amendment was
recommended and annexed to the Constitution, for the purposes of security
and safety.
The gentlemen, he said, finding it impossible to maintain their ground
by the aid of any clause of the Constitution, wherein power was expressly
delegated, had sought the assistance of several general phrases and ex-
pressions, such as, " to provide for the general welfare," " to repel in-
vasions," " to make laws necessary to carry the foregoing powers into
effect," by which they endeavoured to maintain that the general govern-
ment has other powers than those expressly given by, and enumerated in
the Constitution, and unlimited power as to all subjects of a general
nature. If this be true, said he, if these general expressions and clauses
give general and unlimited power, the special enumeration of power in
the Constitution was absurd and useless. Those sage and patriotic poli-
ticians who formed the federal plan of government, puzzled themselves to
no purpose in defining, enumerating, and limiting power : they had nothing
to do but to organize the government; say there should be an executive,
judicial, and legislative body; prescribe the mode in which the members
of the several departments should be brought into office ; and declare that
" they sliould have power to provide for the general welfare" This
would be precisely such a Constitution as gentlemen contended was our
Federal Constitution, in which the powers of the several branches of the
government were so specially enumerated, limited, and defined. And it
was, Mr. Daniel said, a wilful and studied design that misapplied these
general terms and clauses of the Constitution, for they are necessarily ex-
plained by the special grants of power : they must be understood, that
" Congress shall provide for the general welfare," according to the Con-
stitution of the United States, and the powers therein granted. " Congress
may repel invasions," according to the Constitution, and the powers therein
granted. " Congress shall, have power to make all laws which shall be
necessary and proper for carrying into execution the foregoing enumerated
powers :" not to increase and extend their authority, but to carry into
effect those powers which are enumerated in the Constitution.
He said, he presumed enough had been said in answer to the gentle-
man's arguments in favour of the rightful power of Congress to legislate
on this subject: he would now proceed to examine the arguments which
had been urged with an intent to maintain the opinion that the " trial by
jury" was not violated by the " alien-act." The gentleman from Prince
George had said, that aliens were not entitled to a trial by jury, because
they were not parties to the Constitution, were under no obligations to the
government, and that no duties could be demanded of them. That citizens
alone had a right to*a trial by jury, because they were parties to the Con-
88 DEBATE ON VIRGINIA RESOLUTIONS.
I
stitution, which secured that right, and on account of their obligations and
duties to the government.
Mr. Daniel said, if the worthy member had been as attentive to
the authority of Vattel on this point, as he was when he hoped to draw
something from it to support him, he would have found the reverse of
almost everything he stated relative to aliens, to be true ; he would have
found that they had rights to be protected, and 'duties and obligations to dis-
charge ; that they were bound to obey the general laws of the land, and
that they a right to be tried according to the general laws of the land.
He would have found that, " in countries where a stranger may freely
enter, (as in this,) the sovereign is supposed to allow him access only
upon this condition, that he be subject to the laws, I mean the general laws
made to maintain good order, and which have no relation to the title of
citizen or subject of the state. The public safety, the rights of the nation,
and of the prince, necessarily require this condition ; and the stranger
tacitly submits to it as soon as he enters the country, as he cannot pre-
sume upon having access upon any other footing. The empire has the
right of command in the whole country, and the laws are not confined to
regulating the citizens among themselves, but they determine what ought
to be observed by all orders of people throughout the whole extent of the
state. In virtue of this submission, the strangers who commit a fault,
ought to be punished according to the laws of the country." Vattel, book
2d, chap. viii. p. 267, sect. 101 and 102. And again, page 268, section
104, he would have found that, " the sovereign ought not to grant an en-
trance into his state to make strangers fall into a snare : as soon as he
receives them he engages to protect them as his own subjects, and to make
them enjoy, as much as depends on him, an entire security," according to
the general laws of the land. He trusted that the committee were suf-
ficiently satisfied that aliens have rights which are under the protection of
the laws of that state wherein they reside ; that they have duties and obliga-
tions to discharge to that state, and that if they commit a fault,, they have a
right to be tried and punished according to the general laws of that state.
The worthy member from Prince George, as if he foresaw his defeat on
this ground, took refuge under tfrat clause of the " alien-act," which pro-
vides th'at " an alien may prove the falsity of the charge." Mere mockery
of justice, said he, to prove the falsity of suspicion ! Prove the falsity of
being suspected of what he did not know, of what he was not informed !
There was no rule established, by observing which he could avoid sus-
picion : there was no rule directing what shall be done, and what shall be
avoided by the alien : he could only know that it was dangerous for him
to become suspected by the President of what he did not know, and that
he might, if he could, prove the falsity of a suspicion to which some conduct
of his, but what particular conduct he could not tell, may have given birth.
He then observed, that the same gentleman, quitting all constitutional
principles, appealed to the doctrine of necessity, and insisted that it was
absolutely necessary to compel dangerous aliens to depart from our coun-
try, and that the President of the United States ought to be authorized to
enforce their departure. But, Mr. Daniel said, he would insist that some
DEBATE ON VIRGINIA RESOLUTIONS. 89
rule should be established, instead of the bare suspicion, to decide who
were, and who were not, dangerous aliens.
He should require proof, that the Constitution authorized Congress to
invest the President with such a power; this had not been shown, it could
not be shown. He contended, therefore, that this power was lodged in
the several states respectively, and wisely lodged. For, in case ofemer-
gency, each state had it in its power to act immediately, before the Presi-
dent could be informed of the danger. The authority of each state was
always at hand ; could be immediately applied to, and would be readily
inclined to take efficient measures for the safety of iis citizens. The
member from Prince George, he said, had observed, that such a provision
as the one marked by the alien-act was necessary to guard against the
French and their intrigues. If so, he said, the states were competent to
make the provision. He believed they were as much disposed as any
other body would be, to adopt all necessary and constitutional measures.
He hoped, that Virginia had virtue and patriotism sufficient to view with
indignation, and to suppress with vigour, any intrigues of a dangerous na-
ture, whether meditated by France or any other nation. But, in adopting
such a measure, he wished to observe the laws of nations. He could not
consent, under the pretence of guarding against aliens, who were citizens
of France, to violate the rights of other aliens among us, who might be
citizens of any other nation. He contended, that the alien-act was general,
and equally applied to all aliens, whether citizens of France, or subjects
of another power. He stated a case from the law of nations, to prove
that such a regulation, if made at all, should be particularly directed
against the citizens or subjects of that nation from whom danger is appre-
hended.
The member from Prince George, he said, had read a clause from the
Virginia laws, which he assimilated to the alien-act passed by Congress,
and from which he argued the right of Congress to pass the law in qhes-
tion. He requested that the law might again be read. (It was accordingly
read by the clerk in the following words : " It shall and may be lawful
for the Governor, with the advice of the Council of State, to apprehend
and secure, or cause to be apprehended and secured, or compelled to de-
part this common wealth, all suspicious persons, being the subjects of any
foreign power or state, who shall have made a declaration of war against
the said states, or from whom the President of the United States shall ap-
prehend hostile designs against the said states, provided information
thereof shall have been previously received by the executive from him.")
Mr. Daniel then said, that the law which had been read, pursued the law
of nations; and clearly recognised the distinction which he had before
laid down, that it did not authorize the Governor to apprehend and send
away all aliens whom he might suspect; but such suspicious aliens only
whose nation was at war with these states, or from whose nation, hostilities*
were apprehended. That this law was not general, but particularly di-
rected against those aliens, whose nation was at war with this country, or
from whose na<ion there were reasons to expect war. That this law, in-
stead of furnishing an argument in favour of the right of Congress to pass
the law in question, was a strong proof that the legislature of Virginia, at
90 DEBATE ON VIRGINIA RESOLUTIONS.
the time of its passage, entertained the opinion, that the power to regulate
this subject belonged to the state. He said, it was remarkable that the
gentleman from Prince George, on this occasion, following the example
of the present administration, had indulged himself in declamation against
the intrigues of the French nation ; had inveighed with the utmost bitter-
ness, against their policy and injustice; had threatened us with the horrors
of another St. Domingo; that our slaves would be let loose upon us; that
our wives, ouy daughters, our sisters, would be forced into the rude em-
braces of the ruthless negro, who would butcher them before our eyes,
immediately after having satisfied his lustful appetite. Mr. Daniel said,
this language was addressed to the feelings and passions, and not to the
understanding of the committee. For his part, he should consider the
subject upon principle. To the intrigues of France he opposed the virtue
and patriotism of our citizens in general; the vigilance and activity of our
officers and magistrates ; and the wisdom of the state legislature to ob-
serve all necessary measures, an evidence of which was seen in the law
which had been read. That invectives against France could not prove
the constitutionality of the law in question. That if they were intended
to excite the indignation of the committee against that republic, the gen-
tleman had spent his time in vain ; for that the injustice and rapacity of
that nation, without the aid of the gentleman's elocution, had alreacty in-
flamed the mind of every member into bitterness and resentment. But,
amid this universal glow of indignant feelings, he wished to see our glo-
rious Constitutions saved inviolate. Secure me in this point, said Mr.
Daniel ; save the Constitutions of my country from innovation and vio-
lence, and I will join hands with the gentleman, and swear eternal enmity
to France, and all other nations of the earth, who shall be hostile to the
liberty and independence of the United States. But, said he, it would
seem as if the injustice of France to other nations ; her base attack upon
our neutral rights, and undefended, unoffending commerce, had so affright-
ed gentlemen, that they were ready to abandon those principles which
were once so dear to all America. Inglorious sons, however, were they,
who for distant and feeble alarms would forsake those principles and
those rights which our forefathers sought at every hazard, and main-
tained amidst the threatening ruin of war and bloodshed. In vain, said
he, are we told that the French government is a military despotism, which
proscribes the liberty of the press, and carries its measures by force of
the bayonet ! It cannot reconcile us to like measures in the United
States. It cannot reconcile us to a sedition-law and to a standing army,
which will probably produce the same miserable effects here, as they
have done in France. It cannot prove to us the constitutionality of the
acts in question.
He said, before he took leave of this part of the subject, he would take
notice of a charge which had been made by the gentleman from Fre-
deric, against those who advocated the resolutions, that they addressed
arguments to the humanity of the committee. He would reply, that the
opposers of the resolutions addressed arguments to the fears of the com-
mittee ; that admitting the charge to be true, (which was by no means the
case,) it was much more honourable, both for those who make the ad-
DEBATE ON VIRGINIA RESOLUTIONS. 91
dress, and those who are addressed, that application be made to the feelings
of humanity, rather than to those which are excited by fear and alarm.
That the gentleman, himself, had threatened us wkh confusion and dark-
ness, and foreboded the hasty setting of the sun of American glory, if we
adopted the resolutions ; and his coadjutor from Prince George had in-
vaded our country with a French army, and slaughtered our best and
dearest friends before our eyes. This mode of argument, however unfair,
was by no means novel. When our gallant forefathers conceived the
mighty design of declaring the American world independent and free, the
same doctrine of terror and alarm, of dangers from abroad, and mischiefs
and ruin incalculable within, was pressed and repeated. But, resting
firm on principle, they steadily pursued truth, and achieved the glorious
deed of American independence. As then, so now, he hoped, this doc-
trine of terrorism would make no impression ; but that the committee
would consider the subject upon principle, and determine upon its merits.
Mr. Daniel observed, that in the course of the observations which he
had made, to obviate exceptions which gentlemen had taken to the reso-
lutions proposed, it was to be discovered, that his principal objections to
the " alien-act" were, that it violated the sovereignty of the state govern-
ments ; that it blended legislative, executive, and judicial powers ; that it
violated the right of trial by jury, contrary to the Constitution.
With respect to the first objection, he had shown by the foregoing argu-
ments, that the state governments were sovereign as to those powers not
granted to Congress, and this subject, not only not being granted, but pro-
hibited Congress by the ninth section, first article of the Constitution, it
followed, that as to this subject, the states were severally sovereign ; and
that any attempt by Congress to legislate on this subject, within the limits
of any particular state, was an attack ( upon the sovereignty thereof.
As to the second objection, that the alien-act blended legislative, judi-
cial, and executive powers, it might be observed, that legislative power is
the authority to prescribe a rule of conduct : this rule is the act of the
legislative power, declaring what shall be done, and what shall be avoided.
The " alien-act," said Mr. Daniel, does not declare what the alien shall
do, and what he shall avoid : it does not declare a rule of conduct, which
he can know and observe : the President has the power to prescribe this
rule of conduct for the alien, by bringing him to the bar of suspicion, if
he does not observe a line of conduct, which, not being designated by the
" alien-act," is only known and subject to the President's will. But to
declare this rule of conduct is a legislative act ; the President, by this
law, has effectually the right to prescribe this rule: therefore, he con-
tended, that the President was invested with effectual legislative power.
He certainly had the power to judge when the alien came within the rule
prescribed by his suspicion : and in this, as in all other cases, he was in-
vested with executive power. Thus in one person, contrary to the Con-
stitution, was to be seen the lawgiver, judge, and executioner.
With regard to the third objection, that the " alien-act" infringed the
right of trial by jury, he referred the committee to the seventh article of
the amendments to the Constitution, where it is found, that "no person
shall be deprived of his life, liberty, or property, without due process of
92 DEBATE ON VIRGINIA RESOLUTIONS.
law." He contended, that an alien was a person, who had rights of life,
liberty, and property, and was therefore within the provision of this part
of the Constitution. He had before shown, that by the law of nations, an
alien had the right of being tried according to the general laws of the
land. It was here evident, that an alien was a person who could not be
deprived of his " liberty" without due process of law. It remained then
to be inquired what was this " due process of law ?" This " due process
of law," he said, was to be found in the seventh and eighth articles of
the amendments to the Constitution, that " no person shall be held to
answer an accusation, unless on a presentment or indictment by a grand
jury ;" that " the accused shall enjoy the right to a speedy and public
trial by an impartial jurjf, of the state and district wherein the crime shall
have been committed; to be informed of the nature and "cause *6f the
accusation; to be con fronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favour; and to have
the assistance of counsel for his defence." This mode of trial pointed
out by the Constitution, this " due process of law," was disregarded, and
entirely abolished by the " alien-act." Having taken this short view of
the alien-act, he said he would proceed to consider the " sedition-law," as
it was commonly termed. He could have wished that gentlemen had
given their opinions freely on this subject. The gentleman from Prince
George, he said, had given some apology why he declined the discussion :
he had committed himself a day or two past, by declaring that the sedi-
tion-law was already sufficiently odious. It was, therefore, Mr. Daniel
said, he supposed the gentlemen thought it best not to meddle with it. He
would receive the gentleman's apology, and proceed to examine the law,
according to his own ideas on the subject, in which he would occasionally
take notice of what the gentleman from Frederic had urged.
He stated that the acts enumerated in the first section of the sedition-
law, as offences to be punished with heavy fines and long imprisonment,
were " to combine or conspire together with intent to oppose any measure,
or to impede the operation of any law of the United States," or to intimi-
date any officer under the government of the same, from undertaking, per-
forming, or executing his trust or duty ; or to counsel, advise, or attempt
to procure any insurrection, riot, unlawful assembly, or combination,
whether such counsel or advice had effect or not. The offences enume-
rated in the second section of said law, he said, were, " to write, print,
utter, or publish, or to cause the same to be done, or to aid in writing,
printing, uttering, or publishing, any false writings against the govern-
ment, the President, or either house of the Congress of the United States,
with intent to^ defame the government, either house of Congress, or the
President, or to bring them, or either of them, into disrepute; or to excite
against them, or either of them, the hatred of the people ; or to excite any
unlawful combination, for opposing any law, or act of the President of
the United States, or to defeat any such law or act.'''' These were the
provisions of the act. The provisions of the Constitution were, "Congress
shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the
press; or of the right of the people peaceably to assemble, and to petition
DEBATE ON VIRGINIA RESOLUTIONS. 93
/
the government for a redress of grievances." Third article of amendments
to the Constitution. He requested gentlemen to read the one and the
other ; to compare them, and to reconcile them if possible. He was one of
those who believed, that the first clause of the law would, in its operation,
effectually destroy the liberty of speech ; and the second clause did most
completely annihilate the freedom of the press. "To combine, conspire,
counsel, and advise together," was a natural right of self-defence, belong-
ing to the people; it could only be exercised by the use of speech ; it was
a right of self-defence against the tyranny and oppression of government ;
it ought to be exercised with great caution; and never, but upon occasions
of extreme necessity. Of this necessity, the people are the only judges.
For if government could control this right ; if government were the judge,
when the necessity of exercising this right has arrived, the right never
will bfe-used;"for government never will judge that the people ought to
oppose its measures, however unjust, however tyrannical and despotically
oppressive. This right, although subject to abuse, like many other inva-
luable rights, was nevertheless essential to, and inseparable from the liber-
ties of the people. The warmest friend of any government would not
contend that it was infallible. The best of governments may possibly
change into tyranny and despotism. Measures may be adopted violating
the Constitution, and prostrating the rights and principles of the people.
He hoped never to see the time ; but, if it should so happen, no man would
deny but that such measures ought to be opposed. But, he would ask,
how they could be effectually opposed, without the people should "com-
bine, conspire, counsel, and advise"- together? One man could do no-
thing. This right of adopting the only efficient plan of opposition to uncon-
stitutional, oppressive, and tyrannical measures, whenever they should
occur, he hoped never would be given up. This right had been well ex-
ercised on a former occasion against England ; and it would probably be
well used again, if our liberties were sufficiently endangered, to call forth
its exertion. But for the spirited and energetic exercise of this right; but
for the "combining, conspiring, counselling, and advising" together of the
American people, these United States, now independent and free, would
have remained under the tyrannical and despotic domination of the British
king. It had been said, that this doctrine leads to anarchy and confusion;
but, said Mr. Daaiel, this doctrine gave birth and success to our revolu-
tion; secured our present liberty, and the privileges consequent thereupon.
The contrary doctrine, said Mr. Daniel, leads to passive obedience and
non-resistance, to tyranny and oppression, more certain and more danger-
ous. If a measure was unpopular, and should give discontent, it would
be discussed : if it should thereupon be found to be tolerable, it would be
acquiesced in. If, on the contrary, measures should be adopted of such
dangerous and destructive tendency, that they ought to be opposed, he
would ask, how this could be done but by the means which are forbidden
in the first sectionxof the law in question 1 These were the only means
by which liberty, once trampled down by tyrants and despots, could be
reinstated : and if the general government continued its rapid progress of
violating the Constitution, and infringing the liberties of the people, the
94 DEBATE ON VIRGINIA RESOLUTIONS.
time he feared was hastening on, when the people would find it necessary
again, to exercise this natural right of defence.
Mr. Daniel said he would now turn his attention to that part of the law
which affects the freedom of the press, in which the Constitution was most
palpably, and mosjt dangerously infringed. On this subject, he said, the
gentleman from Frederic had contended, that the Constitution was not
violated ; that the common law was a part of the Constitution ; and that
the offences enumerated in the act, were always punishable at common
law. If this be the fact, said Mr. Daniel, the law in question is nugatory;
and the clause of the Constitution on this subject, which had been read,
was of no effect. By the gentleman's common law, which he had read,
offences against the king and his government, were precisely such as were
enumerated as offences in this law, against the President and government
of the United States; substituting the word " President," in the latter case,
for the word " king," in the former. These offences might be " by speak-
ing, or writing against them; or wishing him (the king in England, and
the President in America,) ill, giving out scandalous stories concerning
them (the King and his government in England, and the President and his
government in America,) or doing anything that may tend to lessen him
(the King, or President, as the case may be) in the esteem of his subjects ;
weaken the government, or raise jealousies among the people." (4 Black-
stone's Commentaries, page 123.) When our " sedition law" was so like
the law of England, he did not wonder that the gentleman had supposed
that the law of England was in force here; one being the copy of the
other, with the necessary change of names, and some other trivial cir-
cumstances; nor did he wonder that the gentleman should say, in confor-
mity to that authority, that " the liberty of the press, properly understood,
is by no means infringed or violated" by such regulations, " but consists
in laying no previous restraints upon publications ;" and is otherwise " li-
centiousness," (4 Blackstone, p. 151 ;) that a printer may publish what he
pleases, but must answer the consequence, if a certain set of men shall
adjudge his writings to contain " dangerous and licentious sentiments."
If this be true, he said, he would be glad to be informed for what purpose
was it declared by the Constitution, that "the freedom of the press should
not be restrained ;" and how we were more free in the United States, than
the people of any other nation whatsoever? The most oppressed of Eu-
rope; the slaves and subjects of the most despotic power on the earth, he
said, had the right to speak, write, and print whatever they pleased, but
were liable to be punished afterwards, if they spoke, wrote, or printed any-
thing that was offensive to the government: that there was very little dif-
ference as to the liberty of the press, whether the restraints imposed were
"previous" or subsequent 'to publications. If the press was subjected to
a political licenser, the discretion of the printer would be taken away, and
with it his responsibility; and nothing would be printed but what was
agreeable to the political opinions of a certain set of men ; whereas subse-
quent restraints have the same operation, by saying, if you do " write,
print, utter, or publish," anything contrary to the political opinions, re-
putation or principles o(* certain men, you shall be fined and imprisoned.
In vain, he said, were we told that the accused may prove the truth of his
DEBATE ON VIRGINIA RESOLUTIONS. 95
writings or printing, and that we are only forbidden to write or print false
facts. The truth was that it was not the facts, but the deductions and
conclusions drawn from certain facts, which would constitute the offence.
If a man was to write and publish that the Congress of the United States
had passed the "alien and sedition acts," that the provisions of the said
acts were in these words, reciting the laws as fhey are ; that the Consti-
tution was in these words, reciting the provisions of the Constitution
truly ; and conclude that the said acts violated the Constitution ; that the
Congress and the President, in enacting the same, had assumed powers
not granted to them, and had encroached upon the liberties of the people,
who ought to take measues " to defeat" these laws, and this " act of the
President." Here the facts stated, that the laws had been passed, and that
the Constitution was in terms stated, could be proved, and would not con-
stitute the offence, but the inference from these facts, that the Congress,
in enacting the said laws, had violated the Constitution, assumed powers
not delegated to them, and usurped the rights and liberties of the people,
in which usurpation the President had joined, would certainly have a ten-
dency " to defame the government, the Congress, and the President, and
to bring them into disrepute and hatred among the people," and would
therefore constitute the offence. The inference or conclusion from certain
facts might be true or not, and was mere matter of opinion. It was opi-
nion then, political opinion, which was the real object of punishment.
The deduction made from the facts just stated, he said, was in his opinion
true; the consequence of which was, that the Congress and President of
the United States had not his confidence ; with him they were in " disre-
pute." But he could not prove that the opinion was true, as a fact ; he
could offer those reasons which convinced his mind of its truth, but they
Anight not be satisfactory to a jury summoned with a special regard to their
political opinions, or to a judge of the United States, most of whom had
already pronounced their opinion on the subject, either in pamphlets, or
political instead of legal charges to the grand juries, of the several circuits
of the United States; thus prejudging a constitutional questign, which they
knew would be made, if ever the law was attempted to be carried into effect.
He said he would state one more case to exemplify his opinion. If at
the time of British oppressions, when the parliament of England boldly
implied the right to make laws for, and to tax the American people, with-
out representation, any man had by writing maintained that representation
and taxation were inseparable, and that it was an usurpation and assump-
tion of' power by parliament to impose taxes on the American colonies,
who were not represented in parliament, the fact here stated would not
offend, because true ; but the conclusion, the charge of usurpation, made
upon the British government, would certainly have a tendency to bring it
into " disrepute and hatred" among the people, as it did most effectually
in America, and would have constituted the offence. This opinion, though
now clearly admitted to be true, was then new, and could not be proven
true to an English judge and jury, for they were so impressed with its
falsity, that the nation undertook and carried on a bloody and expensive
war, to correct its error. He concluded that the provisions of this act
abridged and infringed the liberty of the press, which at the time of the
96 DEBATE ON VIRGINIA RESOLUTIONS.
adoption of the Constitution had no other restraint than the responsibility
of the author to the individual who might be injured by his writing or
printing ; that they destroyed all inquiry into political motives, silenced
scrutiny, weakened the responsibility of public servants, and established
political and executive infallibility ; that the solicitude discovered by the
government to defend itself against the attacks of its own citizens, was an
evidence that its acts would not deserve their confidence and esteem ; that
the solicitude thus expressed by threats of fine and imprisonment, to keep
the President for the time being, from coming " into disrepute," was evidence
of a fear that a comparison of motives and views would prove favourable
to his competitor, and was calculated to keep the real merits of competition
out of view, inasmuch as the merits of one of the proposed candidates could
not be insisted on to advantage, without exposing the demerits of the other,
which would tend to bring him " into disrepute." And if the one to whom
the want of merit should be ascribed, should be President for the time
being, thus to bring him into " disrepute," would be to bring the person
discussing the subject into the pains of fine and imprisonment.
It had been contended, said Mr. Daniel, by the gentleman from Frederic,
that the adoption of the resolutions would be an infringement of the right
of the people to petition. He, Mr. Daniel, would state, that this right
might be exercised by an individual, by an assemblage of individuals, or
by the representatives of the people ; which last mode was preferable,
when the sovereignly of the state, as well as the appropriate rights of the
people were attacked, as in the present case. He conceived, however,
that the law in question had very much abridged the right of the people
to petition and remonstrate. The necessity and propriety of petitions and
remonstrances could not be seen but by discussion : the right itself could
not be effectually used, without " counselling and advising together"
Three or more persons would constitute an " unlawful assembly ;" for it
would be easily said, that they were unlawfully assembled, when they
intended, by discussing certain acts of the President, or laws of the govern-
ment, " to defeat the same, by inducing the people to petition and remon-
strate ; or if the same were not defeated, by virtue of such petition and
remonstrance, to bring the government and President into " disrepute,"
for continuing such acts and laws in operation, against which the people
had petitioned and remonstrated. But those things being offences, and so
enumerated in one clause of* the law, an assembly of three or more per-
sons, contemplating the objects just described, would be " unlawful,"
within the purview of the act, and subject to fine and imprisonment. -Again,
he said, the dangerous and ruinous tendency of certain measures, might
not be observed by the people of any particular district. A few, however,
might wish a petition to be made, to remove the grievance of the measures;
in order to which, they would individually address the district by writing,
in which they would expose and censure the evil tendency of the said
measures, to excite the people to petition and remonstrate, " to defeat" the
same, or necessarily to bring the friends of the continuance thereof into
" disrepute." This would be an offence within the purview of the second
clause of the law. Thus, said he, by one act we have seen, that that
clause of the Constitution, which secures the right of speech, of the press,
DEBATE ON VIRGINIA RESOLUTIONS. 97
of petition, of the free exercise of religious opinion to the people, is pros-
trated in every respect, except as it relates TO religion. And this last and
most invaluable right, he had no doubt would soon be invaded, inasmuch
as he had been informed, that the friends of the present measures had
already begun to insinuate, that an " established church was one of the
strongest props to government ;" and inasmuch, that the same reasons
might be urged in its favour, as in favour of the abridgment of the liberty
of the press. But it was said, that the press was still left free to print
truth : " its licentiousness and abuse" are only forbid. So it might be
said of religion : true religion only ought to be tolerated : the abuse of
religion ought to be forbidden : the " licentiousness" of particular sectaries
ought to be restrained.
He said, he was fearful that he had already trespassed upon the patience
of the committee, and he would hasten to a conclusion, with a few remarks
on the particular shape and address of the resolutions. It had been ob-
jected by gentlemen, that it was going too far to declare the acts in ques-
tion, to be " no law, null, void, and of no effect :" that it was sufficient to
say they were unconstitutional. He said, if they were unconstitutional, it fol-
lowed necessarily that they were " not law, but null, void, and of no effect."
But, if those particular words were offensive to gentlemen he had no objection
to any modification, so the principle were retained. As to the objection, that
they were improperly addressed to the other states, Mr. Daniel said, he sup-
posed that this mode was extremely eligible. If the other states think with
this, that the laws are unconstitutional, the laws will be repealed, and the
constitutional question will be settled by this declaration of a majority of the
states : thereby destroying the force of this precedent, and precluding from
any future Congress, who might be disposed to carry the principle to a more
pernicious and ruinous extent, the force of any argument which might be
derived from these laws. If, on the contrary, a sufficient majority of the
states should declare their opinion, that the Constitution gave Congress
authority to pass these laws, the constitutional question would still be
settled ; but an attempt might be made so to amend the Constitution, as to
take from Congress this authority, which in our opinion was so pernicious
and dangerous.
He then concluded by saying, that something must be done: the people,
were not satisfied : they expected that this Legislature would adopt some
measure on this subject : that the Constitution of the United States was
the basis of public tranquillity ; the pledge of the sovereignty of the states,
and of the liberties of the people. But, said he, this basis of public tran-
quillity, this pledge of liberty and security is but a name, a mere phantom,
unless it. be strictly observed. It became our duty to watch attentively,
to see that it was not violated ; to see that it was equally observed by
thosa who govern, and by those who are destined to obey. To attack the
Constitution was an offence against society ; and if those guilty of it were
invested with authority, they added to the offence a perfidious abuse of the
power with which they were intrusted. It was our duty, said he, to sup-
press this abuse with our utmost vigour and vigilance. It was strange to
see a free Constitution openly and boldly attacked by those who were put
in power under it. It was generally by silent and slow attacks, that free
98 DEBATE ON VIRGINIA RESOLUTIONS.
governments had progressively changed, till very little of their original tex-
ture and principles remained : that the doctrine of implication had intro-
duced innovations, under the influence and operation of which, the freest
governments had been enslaved. It was our duty to guard against inno-
vations. The people of Virginia had been attentive to this subject. The
petitions and remonstrances, which had been read to the committee, proved
that the people were seriously alarmed at the innovations of the Federal
Government. He said they proved more : they proved that the people
thought that their servants, in the administration of the Federal Govern-
ment, were not even modest enough to wait the increase of their power
by progressive change. That their ambition exceeded the resources of
the doctrine of implication : that their thirst of power could not be satiated,
but by a direct attack upon the Constitution, and a prostration of the great
rights of the people. He said, this apprehension of the people, which he
thought just, would be satisfied. He thought the mode proposed by the
resolutions was most likely to effect this purpose, as well as other impor-
tant purposes. He said, if they who were the representatives of the people,
would not act for them when called upon, the people will speak for them-
selves; and as the voice of God, they would be heard. He hoped this
final and dreadful appeal would never be necessary. He preferred the
resolutions, and hoped they would be adopted by the committee.
Mr. CURETON arose next, and said, that he wished to make some few
observations. He confessed, that he had before had some doubt about the
alien-law; but that the gentleman last up had convinced him of the pro-
priety of it, and was proceeding to show how, but observed, that as the
committee appeared to be impatient, he would not trouble them any longer,
and therefore moved that the committee should rise, but upon General
Lee's rising to speak, he withdrew his motion.
General LEE then proceeded to observe, that as the subject required the
fullest deliberation, he hoped that all the papers respecting it would be read
that evening, to prevent any interruption in the debate the next day. By
this arrangement time would be saved, and perspicuity in argument pro-
. moted. It was too late in the evening then, to enter at large upon the
subject. This he would defer till the next day, when he should with
frankness and candour deliver his sentiments, with a view of showing the
pernicious tendency of the resolutions on the table.
He begged to know how many counties in the state had presented peti-
tions to the Assembly on this subject ; any one of which petitions, with the
alien-law, he must trouble the clerk, he said, to read, as he believed this
law particularly, to be much misunderstood. He himself considered it as
going only to enable the chief magistrate to remove dangerous aliens,
thereby preventing the commission of crime, and not punishing crimes
committed.
The sedition-law, he said, so far as he recollected it, was free from the
charges contained in the resolutions. If then, on examination, it was
found that these laws were constitutional, the resolutions proposed must
be rejected. If they were found unconstitutional, it was proper to interfere
DEBATE ON VIRGINIA RESOLUTIONS. 99
and restore the Constitution to its original purity. In this salutary wish
he would cheerfully join, but he must take steps becoming a portion of the
same people to take, full of friendship, full of mutual respect, and tending
to perpetuate union and brotherly love, not disunion and hatred.
Mr. NICHOLAS arose next, and said that the gentleman last up wished
to save time, by having all the papers read that evening, but he wished to
know how that would save time? The gentleman had said too that the alien
law extended to prevent only, and not to punish crimes. Mr. Nicholas
asked, if banishment was no punishment? He had always understood,
he said, that it was ; and then observed, that he should have been glad
that the gentleman had been present from the commencement of the dis-
cussion, that he might perfectly have understood the nature of it.
Mr. John Taylors resolutions were then read, together with those laid
upon the table by other gentlemen, and the memorial from the people of
Caroline County.
Mr. BROOKE then arose, and observed, that labouring under all the
diffidence that a person unaccustomed to public speaking would naturally
feel, in delivering his sentiments upon so momentous an occasion as the
present, he was sensible of the disadvantage he must have laboured under,
in delivering his sentiments upon the subject the day before ; and on this
account, he felt more sensibly the attack made upon him by his colleague,
and the attempt made by him to distort the observations, which, in the
midst of his confusion and embarrassment, Mr. Brooke said, had fallen
from him. These observations that gentleman had undertaken to carica-
ture. A more proper person for a task of this kind could not have under-
taken it. He would do justice to every subject he ever did undertake.
Mr. Brooke then said, that he would proceed to repeat to the committee
his observations just as they were expressed, which, notwithstanding the
diffidence he felt, on the occasion, he perfectly recollected ; and he believed
that other gentlemen, not disposed to distort his meaning, would agree with
him in his statement. He had observed, he said, that he was opposed to
the resolutions offered by the gentleman from Caroline, however modified ;
that he was under no instructions ; and that if the people of his county
should be so degenerate (to the best of his recollection was the term ; but if
the term debased, which his colleague had stated as a stronger expression,
would suit his purpose better, it might be so) as to instruct him to vote for
resolutions having so dangerous and alarming a tendency as those referred
to, he should go into mourning ; he should bid adieu to legislation, and
seek an asylum in some other region of the globe, amongst a race of
mortals who had more respect for peace and order, and who set a higher
value upon the blessings of good government. Mr. Brooke then concluded
by observing, that he had thus recapitulated the observations used by him,
no less to gratify his colleague who had called upon hirq, than that the
people of his county might know that these were his sentiments.
Mr. BOOKER then moved that the committee should rise.
100 DEBATE ON VIRGINIA RESOLUTIONS.
Mr. JOHN TAYLOR hoped that the committee would not rise, but that
they would proceed. Several days, he said, had already been spent in
the discussion of the business before them ; and much more time might be
spent, unless they should adopt a different mode. They had, until then,
been in the habit of receiving only one speech a day; and the only way to
dispatch the business he thought, would be to meet early and sit late.
Mr. GEORGE K. TAYLOR said, that he intended to say something further
upon the subject, but wished not to hurry the committee.
Mr. COWAN also observed, that he intended to deliver his sentiments to
the committee, tending to show that the alien law was constitutional, but
wished not to press the matter then.
Mr. NICHOLAS hoped that the committee would not rise. They had as
yet proceeded but slowly. He hoped, therefore, that the gentleman last
up would proceed : he should be glad to hear him.
The same being also requested by others at the same time,
Mr. COWAN proceeded, by observing that much had been said upon the
subject already. It was a question of great importance, and the great
attention which had been given by the committee, was a proof of the
talents of the speakers. He confessed that he had no such claim, but
came forward on another ground. He felt it a duty to his constituents
and the whole community, to engage in the discussion. He had noticed,
he said, that the observations of the gentleman from Prince George had
been objected to on one particular ground, that of their mingling the affairs
of France with the subject of the laws under consideration. But he (Mr.
Cowan) thought that could not be avoided. The present question, he said,
had its root in French transactions. The rights of citizens and aliens, he
thought, had been confounded ; and in order to have a clear apprehension
of them, a standard ought to be fixed upon to try them. That standard
he pronounced to be, as to citizens, the Constitution; as to aliens, the law
of nations. Every sovereign nation, he said, was possessed of certain
rights. Amongst them the right to govern aliens was a perfect right. It
vested a power to restrain them. That right, he said, contained two
things ; the first was that of obliging aliens to depart, the second was to
allow them to remain.
An alien, said Mr. Cowan, entering into a country, as the condition of
such entrance, doth agree to submit to the laws of its sovereignty. Sub-
mitting to them did imply, that when required, he was bound to retire.
Where did the exercise of this power rest? By the Constitution, the power
to exclude remains in the states for a limited time. It was true that the
powers not particularly granted are reserved. It had been said that the
states were sovereign. It was so, but not in the latitude contended for.
For, if it were so, the clause in the Constitution respecting the migration
and importation of persons, was an argument to the contrary. How did
the states derive this right 1 If they had it before the adoption of the Consti-
tution, the Constitution gave it to no purpose. It was a supererogation.
By the adoption of the Constitution, Mr. Cowan conceived, the states
DEBATE ON VIRGINIA RESOLUTIONS. lOl
excepted that right. Where was it then ? It was with the peopl
in order to the distribution of powers therein specified, and for that pur-
pose, had resumed their full, their native rights. That, indeed, was a
matter of moment. For, could they once ascertain where the right then
was vested, they might then find the key to unlock the Constitution, so as
to find the power to pass an alien-law. If Congress had not the right, the
states must have a paramount right to protect aliens. If Congress had it
not, the states could suffer aliens to remain within them, in despite of Con-
gress. Could the states then confer a perfect right on aliens? If they
could not, they had no power to keep them here. For, if they could keep
them here one hour, they might keep them here until 1808. But, Mr.
Cowan said, he would attempt to show that the states had no such right.
He hoped gentlemen would answer him on that point. A state could
confer a perfect right only in two ways : First, by naturalization ; but
this subject was conveyed to Congress. Secondly, by treaty with the
state from which the alien comes ; but this power, too, was vested in Con-
gress, and prohibited to the states. Could an act of Assembly confer a
perfect right? No; because, "a perfect right is that to which is joined
the right of constraining those who refuse to fulfil the obligation resulting
from it." An alien could not oblige a compliance with the terms of it.
It had been said that the alien-law violated that part of the Constitution
which gives the state a right to exclude aliens, if it thinks proper. But, if
the stale could not give the right to them to remain, it must be with Con-
gress, and therefore no violation. By the Constitution, a power was given
to Congress to repel and to protect against invasion, and to make any law
to carry its measures into effect. What could be the meaning, then, of
those clauses? The terms to repel invasion, and protect against invasion,
gave different powers. Could it be thought proper, that the general go-
vernment should have no power to defeat a plan before it was matured ?
It must be inferred, then, from such words, that Congress had the power
to take such measures as would secure the people. There was no neces-
sity, then, of resorting to the last clause of the eighth section of the first
article, for the power in question. The general powers of Congress would
be sufficient to give it. When bound to accomplish an end, are not, said
he, the means included? Or are they withheld? But, if the state had
no such power, it was in Congress. For, if it was not there, where was
it? Thus much, Mr. Cowan said, for the constitutionality of the alien-
law. He proceeded next to discuss its nature. It had been said, that it
blended different powers. But, Mr. Cowan said, that the Constitution of
the United States, in his opinion, was not such an one as that the powers
of government were necessarily kept separate and distinct. It was true,
they were so in the state Constitution ; but that they are not so in the
former, was proved by the instance of the President's ratifying a treaty.
For, as the treaty when made, becomes a law, his ratification has the
effect of a legislative act. He must often act with a union of powers.
By approving laws, particularly, he legislates ; and in cases where no
person is pointed out by a law to enforce its execution, the President per-
haps is the proper person to do it. This is proved by that clause in the
Constitution which directs, that the President shall take care that the laws
102 DEBATE ON VIRGINIA RESOLUTIONS.
be 'faithfully executed. Therefore, even if the President had not been
named to carry the alien-law into effect, by the Constitution, he must have
done it so far as was executive. Two powers, then, are united by the
Constitution in him.
Mr. Cowan then observed, that if the committee could be convinced that
the law was constitutional, they certainly must conceive the wisdom of
Congress adequate to the policy of such a law. The alien-enemy laws
passed by the Legislature of this state, and also by the Congress of the
United States, had been admitted by the gentleman from Caroline to be
necessary. He (Mr. Cowan] considered that law of Congress as being
very analogous to the law now the subject of debate. For, if such enemy-
alien law be necessary in a state of war, the law of Congress now under
the consideration of the committee, under defensive operations, was neces-
sary in proportion. It had been urged loo, that aliens, by the law of
nations, had the same rights as citizens. But that the alien was so en-
titled, he said, was necessary to be shown. There certainly was a dis-
tinction between the alien and citizen. An alien is not subject to all the
laws of a country, but such only as regulated the affairs of private life.
Mr. Cowan then read the seventh amendment to the Constitution, contain-
ing the principles and regulations which were to govern in criminal cases.
Gentlemen had derived rights to aliens under this clause, and seemed to
rely much upon the word persons used in this clause. But he (Mr. Cowan)
asserted that aliens were entitled to their privileges from a principle of the
law of nations, and not under the Constitution, as a party thereto. For
the alien could not be made a soldier, he owing allegiance elsewhere.
The expressions, too, used in the seventh amendment, " except in cases
arising in the land or naval forces, or in the militia when in actual service,
in time of war or public danger," prove that aliens were not the persons
contemplated by that clause, but citizens, they only being subject to those
kinds of service. Indeed, an Indian or a negro might, by such doctrines
as gentlemen held, be as well entitled as an alien. But none of these were
parties to the Constitution. Gentlemen who argued thus, would prove too
much for an alien. They would place him in a better situation than our
own citizens. It had been said banishment is a punishment. But banishment
of a citizen, said Mr. Caivan, exists not under the Constitution. He said,
also, that an alien on coming into, admitted the right of sovereignty of the
country over him. This was the condition of his admission into every
country : to illustrate which, he repeated the observations which he had
before made upon that point. He also recapitulated his preceding argu-
ments about perfect right, and then observed that it had been said that this
Assembly ought to adopt the resolutions before them, and not use force ;
but by means of them, produce an effect on the general government. And
it was further said that the compact was between states. But, Mr. Cowan
said, he could not agree with gentlemen in these points. What effect
could the resolutions have? It ought to be supposed that Congress had
wisdom : that, if they thought they were right they would not recede. If
they thought they were wrong, he believed they would endeavour to do
what was right. He thought, too, that the compact contained an union
both of the states and people. What, said he, would be the effect of de-
DEBATE ON VIRGINIA RESOLUTIONS. 103
claring the laws null and void ? The principle would extend to all laws
of Congress whatever. What then would be the result? It would shake
the foundations of tranquillity. It would shake the faith of the people in
their government, as well as the faith of foreign nations in it. It would be
setting up powers paramount to the government. Because a few of the
people had directed them to act upon the subject, could they think they
had the power? Had the people empowered them to declare the laws null
and void ? On the contrary, if the people on their return, should hold a
different language, how could the members of this House justify themselves
to the people ? Would it be by telling them that they, their representatives,
had all powers? He again stated the consequence of exercising such a
power. And if the compact were to be dissolved, he asked, what would be
the consequences? The resolutions would give a pause to the acts under
consideration. For they recommended to the people to obey or not obey.
And if without power from the people, this Assembly should attempt to
exercise their rights to control the general government, he asked what
would be the consequences ? He enumerated them much at large, and
concluded with an earnest request that they would not adopt the mode pro-
posed by the resolutions.
On motion, the committee then rose, the chairman reported progress,
asked, and had leave for the committee to sit again.
IN THE HOUSE OF DELEGATES,
Thursday, December 20, 1798.
The House resolved itself into a committee of the whole House, on the
state of the commonwealth, Mr. Breckenridgein the chair, when Mr. John
Taylor's resolutions being still under consideration,
General LEE arose, and said that he was sorry he had been prevented
from attending his duty in the House earlier in the session. He had
thereby lost the opportunity of combating the pernicious system in opera-
tion at its commencement, as well as that of obtaining the information
which previous discussion must have afforded. Disadvantageously, how-
ever, as he felt himself situated, he could not refrain from presenting to
the committee those reasons which influenced him in opposing the resolu-
tions. There were, he believed, three propositions on the table : the
resolutions proffered by the worthy member from Caroline : counter reso-
lutions proposed by his worthy friend from Prince George, and a resolu-
tion proposed by a worthy member from Prince William. To the counter-
resolutions he gave his cordial assent: to the last proposition he also
assented, as it breathed a spirit congenial to true American policy, and
afforded an innocent way of disposing of the resolutions from Caroline.
But inasmuch as the rejection of the first resolutions would necessarily
involve the approbation of those proposed in opposition, he should apply
his observations to effect that object only.
104 DEBATE ON VIRGINIA RESOLUTIONS.
General Lee then contended, that the ruling principle in the resolutions
was erroneous. They asserted as a fundamental position, that the exist-
ing Constitution was a compact of states. He denied this position : de-
claring the Constitution to be a compact among the people. The ancient
confederation was a compact among the states ; it was so in style, manner,
and power. But the government under which we now live, was precisely
the reverse. What is its style? '.'We the people." What is its man-
ner? Executed by functionaries appointed mediately or immediately by
the people. What is its power? That of the people; derived from them,
and based upon them. How then could it be asserted that the present
Constitution is a compact of states ? And would the committee sanction
by their approbation, a declaration palpably wrong? It was true, there
was to be drawn from the Constitution some faint support for this errone-
ous construction. The Senate, one branch of the Federal Government, was
elected by the states, as states. This deviation from the general system
could not be relied on to destroy the system itself. It was the result of
our peculiar situation. The smaller states could not be induced to re-
nounce their existing equality entirely. It was necessary to compromise,
in order to obtain the happy Constitution we possess.
To this compromise was attributed the federal feature just mentioned.
But this partial departure from the general principles of the system, could
not be regarded as covering the broad ground taken in the resolutions.
All the branches of government ought to be elected by the states, as states,
to maintain the position assumed.
This was not the case, and consequently the resolutions were radically
erroneous.
General Lee then proceeded to the examination of the alien and sedition
laws. He began with the alien law, which he contended was not a breach
of the Constitution. If the law was unconstitutional, he admitted the
right of interposition on the part of the General Assembly ; nay, it was
their duty, and every good citizen was bound to uphold them, in fair
and friendly exertions, to correct an injury so serious and pernicious. He
would himself cordially contribute his humble mite; but even in that
case, he should adopt a very different manner from that contained in the
resolutions. Friendship should be the ground, friendship the dress, and
friendship the end of his measures. The resolutions inspired hostility, and
squinted at disunion.
The objections made to the alien-law were: 1st, It transcends the
power of Congress. 2d, It violates that article of the Constitution which
leaves to the states the right of admission of emigrants. 3d, It deprives
an alien-friend of trial by jury. 4th, It unites legislative, executive, and
judicial powers. To the two last, he said, he should particularly attend,
as gentlemen preceding him had, he understood, fully noticed the two
first. General Lee read some passages from the law, tending to show
that the prevention of commission of crime, and not the punishment of a
crime committed, was its only object.
He then proceeded to show that trial by jury could only apply on
charge of crime committed. It was ludicrous to attempt to apply it in the
alien-law ; arid it was consequently absurd to stigmatize that law, and
DEBATE ON VIRGINIA RESOLUTIONS. 105
those who framed it, with violation of the Constitution, by denial of trial
by jury, where trial by jury could not possibly apply. The law was in
its nature preventive, and sprung from the right of duty of government to
protect the states from invasion. The exercise of this right belonged to
Congress, and they were the sole judges of the expediency. In their de-
cision, all ought to acquiesce. In case of error or vice, the revolving
elections presented a proper corrective, which could be applied to without
commotion or disturbance ; and which, fairly and judiciously applied,
could not fail to cleanse the body politic.
During the debate, it had been well observed by the worthy member
from Lunenburg, that the injustice of France might be considered as the
root of these measures, and that it was not easy to discuss the latter,
without reference to the former. This remark was certainly true, and
must have been felt by every gentleman engaged in the discussion. In
case of an invasion, a measure dependent only on its practicability, of
which practicability our venomous and insatiable foe was the sole judge,
what keen and operative aid might not be afforded by the numerous aliens,
long fostered by American hospitality, and anxious for an opportunity to
display their ingratitude, if we might be permitted to form an opinion of
their future conduct by the ^eal with which they laboured to expel from
the breasts of our citizens all respect for religion afcd government; pre-
paring, as far as was in their power, the American people for the reaction
of the French and Saint Domingo tragedies.
Ought not then Congress to have taken measures to rid their country
of such eventual misery ? It was their first duty so to do ; and supine-
ness on their parts would have been criminal.
But it seems that aliens have rights under our Constitution. It was
wonderfully kind, he said, in our fathers to devote their time and money
to the care of the Turk, Gaul, and Indian, when the proper object was
that of their children. This spurious doctrine, however confidently as-
serted, was not credited by the gentlemen themselves. They might impose
on others, but the discernment of their own minds forbade success in im-
posing on themselves. An alien would claim no right in this country,
unless he could show a treaty for it; excepting his participation in the
usual rights of citizens, which he held upon courtesy, and which courtesy
could be withdrawn at the pleasure of the sovereign power. Be done
then, he said, with all these pretences. They were groundless, and seized
only to excite more and more the begun ferment.
The sedition-law, General Lee said, was also declared to be a violation
of the Constitution. Let us, said he, examine it. Let us refer to the
clause in the Constitution securing the freedom of the press, which we are
told by the above law is abridged. By the law you must conspire to op-
pose a measure of government ; or utter, write, or publish, with the inten-
tion of opposing, or exciting opposition to government. The publication
must also be false, malicious, and scandalous.
General Lee then asked, if government was worth preserving? If
not, let it be annulled. If it was, deny not to it, he said, the means of
preserving itself. The Constitution must be very defective, if it held .not
the power of self-preservation. It was not defective ; and a fair construe-
106 DEHATE ON VIRGINIA RESOLUTIONS.
tion of it would warrant the sedition-law. Government with us depended
for its existence upon the affections of the people. In its preservation the
people were interested. Any attempt, by the publication of falsehood to
discredit government, and thereby to impair the public confidence in it,
was an offence against the people; it was wrong in morality, and ought
to be punished. What honest man would complain of a law, which
forbids the propagation of malice, slander, and falsehood 1 What good
citizen would not delight in a law, which, while it punishes the above
vices, tends to perpetuate the government of his choice? And yet a law
of that sort, he said, afforded a fertile topic of abuse and misrepresenta-
tion.
General Lee then observed that, " thou shalt not lie," was one of the
ten commandments : it was one of the injunctions of the sedition-law.
Whoever considered the freedom of speech abridged by the divine law ?
No man unless lunatic; nor could the freedom of the press be so deemed,
without a misconstruction of the Constitution, or of the sedition-law.
This state, he said, had from the Revolution enacted laws of the same
sort. In 1776, a committee was appointed for the revision of our laws.
Messrs. Pendleton, Wythe, Jefferson, Mason and Lee, composed the
committee; able, honourable, and eminent citizens. Among their pro-
posed bills, was to be found one on the subject of libels. A reference to
this bill would show its minute resemblance to the sedition-law. Autho-
rity such as that just quoted, General Lee said, could not fail in guarding
the committee from accrediting the intemperate censures issued against
Congress. He would proceed, he said, to another authority in point of
time and subject, though one of the respectable gentlemen just named,
and the very one of all others to whom gentlemen on the other side at-
tached most weight. Mr. Jefferson, in his correspondence with Mr. Ma-
dison, respecting the new Constitution, maintains, said General Lee, the
doctrine we contend for. He (Mr. Jefferson] expressly says, that in pre-
venting the abridgment of the freedom of the press, punishment for
uttering falsehoods ought not to be inhibited. (3 Jeff. Mem. 25.) The
same doctrine is expressed by the same gentleman, in his Notes on Vir-
ginia. (Notes on Va., Appendix No. II., p. 233.)
However, General Lee said, he would refer to an authority still higher,
the General Assembly of this state in 1776. That august body, the
champions of American rights, the patriots who composed our state Con-
stitution, passed a law on this subject in the following words : " That, if
any person residing, or being within this commonwealth shall, from and
after the publication hereof, by any word, open deed, or act, advisedly
and willingly, maintain and defend the authority, jurisdiction, or power of
the king, or parliament of Great Britain, the person so offending, being
legally convicted thereof, shall be punished with fine and imprisonment,
to be ascertained by a jury, so that the fine exceed not the sum of twenty
thousand pounds, nor the . imprisonment the term of five years :" " and
that any person who shall maliciously and advisedly endeavour to excite
the people to resist the government of this commonwealth as by law esta-
blished, or persuade them to return to a dependence upon the crown of
Great Britain, or who shall maliciously, or advisedly terrify and discou-
DEBATE ON VIRGINIA RESOLUTIONS. 107
rage the people from enlisting into the service of the commonwealth, or
dispose them to favour the enemy, every person so offending, and being
thereof legally convicted, shall be punished with fine and imprisonment
as aforesaid."
These men, General Lee said, formed our Constitution, and these men
passed the law of which the quotation is an extract. They must have
understood their own work ; they could not mean to violate the Constitu-
tion. The law then was not unconstitutional in their opinions, and yet it
must be so, if the doctrine now advanced be accurate.
The Constitutions of the state and of the United States, provide in terms
equally strong for the security of the freedom of the press. The law
above quoted, passed by the state, and the sedition-law, passed by Con-
gress, were of the same sort in word, spirit, and object. If the first be
no violation of the state Constitution, the second could not be deemed a
violation of the United States Constitution. Other laws passed by the
state, all tending to justify the opinions which he and those who thought
with him held, General Lee said, might be referred to; especially the
law against the divulgers of false news and the law against treason. It
had been fully observed by the worthy member from Prince George, that
the word " freedom" of the press had a definite meaning; and he had
proved incontestably what this technical meaning was, to wit, a freedom
from every restraint in printing, but not a freedom from punishment, if
the printing was in its tendency injurious to an individual or to the com-
munity.
It appeared plainly to his mind then, that the resolutions asserted an
untruth, when they charged the two laws with violation of the Constitu-
tion. But it seems, he said, that the laws are inexpedient and unwise.
Of their expediency and wisdom the people have made Congress the
sole judge. They have the best information ; their object must be the
public good, and it was presumable that the measure was wise and neces-
sary, or their adoption would not have taken place. He would not, he
said, examine the question of expediency of the laws, but would examine
the expediency of the resolutions. Admitting for a moment, that the laws
were unconstitutional, he contended that the course pursued by the reso-
lutions was inadmissible. Prudence frowned on the indecorum and hos-
tility which their face showed, nor was it to be presumed that contumely
to the sovereignty of the Union was the likeliest way to obtain a repeal of
the laws. The very reverse must happen. Why, then, recur to such
an expedient, if the object of repeal be the real object ? He hoped that
he should be pardoned, he said, when he suspected that repeal of the
laws was not the leading point in view. Promotion of disunion and sepa-
ration of the states, struck him as objects which the resolutions covered.
What evils so great could befall the American people? Every measure
squinting at such disasters ought to be spurned with zeal. Let us, then,
said he, put our veto on the resolutions. 1 Was an individual, he observed,
to apply to his friend for redress of some supposed injury, the application
would be conveyed in terms polite and friendly. So ought it to be when
a state applied to the United States. But why not wait for the operation
of the constitutional checks? The united system was made by the whole
108 DEBATE ON VIRGINIA RESOLUTIONS.
people, for the management of all affairs national. The same people
instituted state governments, for the management of all state affairs.
These systems held concurring jurisdiction over some subjects, and of
course might occasionally interfere. Who, then, was the proper arbiter
between them ? Not the state government : the people had given them
no such power. The people themselves, the creators of both systems,
were the proper judges. Their decision was obtainable under the rules of
the Constitution in the revolving elections. The judiciary also was a
source of correction of legislative evil; a source fixed by the Constitution,
and adequate to cure violations of the same like those now alleged. The
state legislatures might also act, but it must be by proposing amendments
to the Constitution in either way therein delineated.
If then the laws were deemed unconstitutional, let the question, he said,
be left to the people, to the judges : or let the legislature come forward
with a proposition for amending the doubtful parts of the Constitution ; or
with a respectful and friendly memorial, urging Congress to repeal the
laws. Thus would our union be strengthened, our friendship perpetuated.
The state judges, he said, had on many occasions interposed when this
legislature had passed laws unconstitutional. The remedy had cured the
disorder, and tranquillity remained undisturbed. So would do the federal
judges. They were as respectable, as trustworthy as were the state
judges ; in them as much confidence ought to be reposed. For his part,
he said, he felt as much confidence ; nor could he admit the force of those
distinctions which gentlemen laboured to establish, tending to discriminate
in favour of state judges and state officers. They were all citizens alike,
bound to do their duty ; clothed with the authority of the people, and
directed by the will of the people. Whether called state or federal judges,
sheriff or marshal, was a light and unimportant circumstance.
The resolutions, General Lee said, struck him as recommending resis-
tance. They declared the laws null and void. Our citizens thus think-
ing,, would disobey the laws. This disobedience would be patronised by
the state, and could not be submitted to by the United States. Insurrec-
tion would be the consequence. We have had one insurrection lately, and
that without the patronage of the legislature. How much more likely
might an insurrection happen, which seemed to be advised by the Assem-
bly? The scene in Pennsylvania turned out to be a comedy: the same
attempt here, he feared, would issue in tragedy. Let us, said he, avoid
these numerous ills. All the states are interested in our decision, both as
to their reputation and tranquillity. He requested gentlemen then to be
temperate, to reject the proffered paper, and adopt some other course.
Division among ourselves at this time, he said, encouraged invasion.
He could not bring himself to believe that gentlemen meant to invite the
enemy to our country. He could not attribute to gentlemen such motives.
But what signified the goodness of their intentions, if their measures pro-
duced the effect ?
General Lee then concluded by entreating gentlemen to pause. Take
this one rash step, said he, and you will be carried step by step till you
land in misery, or submit quietly with derision settled upon your heads.
Should my efforts, Mr. Chairman, be unavailing, I shall lament my coun-
DEBATE ON VIRGINIA RESOLUTIONS. 109
try's fate, and acquiesce in my country's will ; and amidst the surround-
ing calamities, derive some consolation from recollecting my humble exer-
tions to stop the mad career.
Mr. CURETON said, that there had been silence in the committee for some
time ; and if no other gentleman was disposed to speak, he hoped the
question would then be put. The debate had engaged their attention for
several days past, and he expected that every member of the committee
had made up his mind upon the question.
Mr. John Taylor's resolutions were read by the clerk.
Mr. PETER JOHNSTON then arose, and acknowledged his incompetency to
throw any light upon the subject, but hoped to be indulged with a few
observations in answer to the gentleman from Westmoreland. He had
contended that the states were not parties to the compact, but the people.
Mr. Johnston denied the position, and said that every fact in the history
of the government would contradict it. If the confederation was formed
by states, the states alone possessed the power of dissolving it. And when
it was found incompetent, the states, and not the people, directed a con-
vention to frame the Constitution. When that was framed, their power
was at an end. The members of it, it was true, were the representatives
of the mass of the people of America. But, when the system was framed,
it was submitted to the conventions of the people of the several states. If
those conventions then assembled under the auspices of the legislatures of
the different states, the states were parties. Should the words, " we the
people," then change the nature of the compact, contrary to the historical
facts of the day 1 He thought not.
Mr. Johnston then cited the fourth section of the fourth article of the
Constitution, which declares, "that the United States shall guarantee to
every state in this Union a republican form of government, &c." Also
the fifth article, which declares, that " the Congress, whenever two-thirds
of both houses shall deem it necessary, shall propose amendments to this
Constitution, or on the application of the legislatures of two-thirds of the
several states, shall call a convention for proposing amendments, which
in either case shall be valid to all intents and purposes, as part of this
Constitution, when ratified by the legislatures of three-fourths of the seve-
ral states, or by conventions of three-fourths thereof, as the one or the
other mode of ratification may be proposed by the Congress, &c." From
these clauses, he conceived, an irrefragable argument was deducible in
favour of his idea. It had been said, however, that from the expression
conventions in this article, the states were not parties. Mr. Johnston con-
tended that they were, as the other expressions in this article were as
strongly in favour of the states being parties, as the word conventions
could be in favour of the people being parties. The truth was, that both
the states and the people were parties.
He then made several observations in answer to General Lee's argu-
ment upon the matter of compromise between the states. This gentle-
man, too, he said, had asserted that the alien-law extended to prevent
offences, and not to punish them. This Mr. Johnston denied, and pro-
ceeded to point out the real case of the alien under the law of Congress.
He understood the law was designed for alien-friends. There was also an
110 DEBATE ON VIRGINIA RESOLUTIONS,
alien-enemy law ; and if the former related to alien-enemies, it would
have had reference to the latter. But it was general ; it related therefore
to both. He mentioned the argument of General Lee respecting the entry
of aliens into a country, but observed that this point had been before
spoken to.
Mr. Johnston also referred to the remarks of Mr. George K. Taylor
upon the rights of aliens, and contended that an alien was- entitled to jus-
tice. If so, he was entitled to the means of obtaining justice, to which a
fair trial was indispensable, but was deprived of it by this law. It was in
vain to say that the President would not abuse the power. If it was not
warrantable by the Constitution, it was still objectionable. It had been
said, too, that citizens might live in peace notwithstanding the law. That
neither, was any argument if the law was unconstitutional. The gentle-
man from Westmoreland had placed a particular construction on the word
persons. In doing that, the gentleman should have recollected the case
of a certain description of persons excluded by the laws of this state from
entering the same. The same gentleman had read extracts too from the
sedition-law, to show that there must be intent and purpose, in order to
bring men within the law. Mr. Johnston asked how intent and purpose
were to be made out but by words ? To illustrate which he mentioned
Lyon's case ; and then asked how an intent could be proved, but by de-
ductions from words? Was that any security? An evil intent might be
deduced from words, by which none was ever designed. He mentioned
as an instance, the story lately circulated amongst them respecting Mr.
Tazewell, our senator. It would be, moreover, in the power of the tools
of government to place a construction On words which might destroy the
person speaking them. The gentleman from Westmoreland had also
read extracts from the law of the state respecting aliens, and insisted that
Congress had the same right as the state to pass such a law. This Mr.
Johnston denied, and contended that the states in that respect had sove-
reign power, and that Congress had no such power, but a defined and
limited power only. To prove which he read the first clause of the ninth
section of the first article, in the following words : " The migration or im-
portation of such persons as any of the states now existing, shall think
proper to admit, shall not be prohibited prior to the year 1808, &c. ;" and
then asked, if any law having that effect, had been passed before the adop-
tion of the Constitution ? There had not ; therefore such clause was in-
serted. Mr. Jefferson's letter too, had been produced, but was that to be
quoted to govern the committee on the occasion ? The Constitution should
be their guide. And even Mr. Jefferson's letter, as it was stated, did
not extend to the business in question ; it related only to private regula-
tions.
Mr. Johnston then proceeded to consider the consequences of the sedi-
tion-law ; and among others, conceived that the public opinion, hereto-
fore found so useful, would be repressed, would be punished by it. Was
that the liberty which was guaranteed by the Constitution ? No ; 'it was
a shameful attack upon both. All the gentlemen who had spoken upon
this question, (except the gentleman from Caroline,) instead of arguing
the constitutional point, had addressed themselves to the passions. He
DEBATE ON VIRGINIA RESOLUTIONS. HI
then asked what would be the consequence if responsibility was taken
from public servants? The style of the resolutions too had been
complained of. But whether the laws were said by the committee to be
null and void, or not, was a matter, he thought, of little consequence.
For if they were unconstitutional, they, of course, were null and void.
He justified the mode of communication which the resolutions proposed.
The people might petition if they thought proper. But the state, when
addressing its own servants, ought to act as the resolutions proposed.
It had a right to instruct its senators, and the people their representatives.
However, Mr. Johnston said, as the subject was exhausted, he would be
satisfied with the remarks he had made.
Mr. CURETON arose next, and proceeded to deliver his opinion in re-
spect to the powers of the general government and the state governments.
How were their powers derived? From the people. The convention
that framed the Constitution was called by the states. The Constitution
when framed was submitted to the people, who, by 'convention, ratified it.
He asked what would be the consequence of an opinion that the states
had the balance of power alone? What was it? One-sixteenth part
only. He considered that the people had powers ; and contended that
they had the only right to act upon the sedition law. And if Congress
had usurped a power, which should appear to be an innovation on their
rights, they would have the power in March next to make an example of
those who had trampled on those rights ,* and this mode of proceeding
was consistent with the Constitution. He then asked why did the resolu-
tions embrace both laws ? He also made several observations respecting
the power of passing such a law as the alien- law. He agreed with the
gentleman from Lunenburg, that the power properly belonged to Congress ;
and asked how could aliens dangerous to the country be sent out of it, if
the power was not vested in the President.
Mr. Cureton then proceeded to answer the objections of gentlemen in
respect to the corruption of the officers of the general government ; and
hoped that they should be confined to the constitutionality of the laws :
but he still contended that the people had the only right to act upon the
sedition-law. The states never had the power alone ; therefore it could
not be reserved. It belonged to Congress, who were under the correction
of the people only. As far as the resolutions related to the alien-law, he
had no objection, he said, to do what was proper : for instance, if it should
appear that the law was an infringement on the state government, to re-
commend it to our senators in Congress to endeavour to have the same
repealed ; for that was sanctioned by precedent. But the plan of the
resolutions, Mr. Cureton said, was a new one. He looked upon it as an
innovation on the rights of the people, and stabbing fundamental princi-
ples. He concluded by hoping, therefore, that the resolutions would not
be agreed to.
Mr. JOHN TAYLOR arose next, and observed that though it was late,
and the debates had been protracted to great length, he hoped the impor-
tance of the subject would be considered as a justification for his replying
to the extraordinary and dangerous arguments which had been urged in
opposition to the resolutions he had introduced.
112 DEBATE ON VIRGINIA RESOLUTIONS.
A member of Lunenberg had even asserted them to be an act of per-
fidiousness to the people ; because, by undertaking to declare one law of
Congress unconstitutional, the legislature would assume a power of de-
claring all their laws unconstitutional. Let the proposition then be re-
versed, to discover if there be perfidiousness in the case, the side to which
it attached. Would it be said, that the Legislature could not declare this
law of Congress unconstitutional, because it could declare no law of Con-
gress unconstitutional? Admitting such a position, did not these conse-
quences evidently follow, that the check meditated against Congress in the
existence of the state governments, was demolished ; that Congress
might at its pleasure violate the constitutional rights of these governments;
that they must instantly become dependent, and be finally annihilated.
Could it be perfidious to preserve the freedom of religion, of speech, of the
press, and even the right of petitioning for a redress of grievances 1 Gen-
tlemen, in defining the laws of Congress, had taken their stand upon this
broad principle, namely, " That every government inherently possesses
the powers necessary for its own preservation." Apply this principle to
the state governments: for, if it be a sound one, they are equally entitled
to the benefit of it, with the general government. Under this principle
then, to which his adversary had resorted, and which he therefore could
not deny, it followed that the state governments have a right to withstand
such unconstitutional laws of Congress, as may tend to their destruction,
because such " a power is necessary for their preservation." To illustrate
this, suppose Congress should be of opinion, that an arrangement of men
into different ranks would tend to the order of society, and should, as pre-
paratory to this end, intermeddle with inheritances, and re-establish pri-
mogeniture. It could be only urged against such a law, that it was un-
constitutional ; but if the state could not declare any law of Congress
unconstitutional and void, even such an one as this must be submitted to,
and of course all powers whatsoever would gradually be absorbed by, and
consolidated in, the general government.
He observed, that the right of the state to contest the constitutionality
of a law of Congress could, however, be defended upon better ground, than
by the reaction of the doctrines of gentlemen on themselves. That a
principle literally constitutional, theoretically sound, and practically useful,
could be advanced, on which to rest it. It was this : the people and the
states could only have intended to invest Congress with a power to legis-
late constitutionally, and the Constitution expressly retains to the people
and the states, every power not surrendered. If therefore Congress
should, as was certainly possible, legislate unconstitutionally, it was evi-
dent that in theory they have done wrong, and it only remained to con-
sider whether the Constitution is so defective as to have established limita-
tions and reservations, without the means of enforcing them, in a mode, by
which they could be made practically useful. Suppose a clashing of
opinion should exist between Congress and the states, respecting the true
limits of their constitutional territories, it was easy to see, that if the right
of decision had been vested in either party, that party, deciding in the
spirit and interest of party, would inevitably have swallowed up the other.
The Constitution must not only have foreseen the possibility of such a
DEBATE ON VIRGINIA RESOLUTIONS. 113
clashing, but also the consequence of a preference on either side as to its
construction. And out of this foresight must have arisen the fifth article,
by which .two-thirds of Congress may call upon the states for an explana-
tion of any such controversy as the present, by way of amendment to the
Constitution ; and thus correct an erroneous construction of its own acts,
by a minority of the states ; whilst two-thirds of the states are also allowed
to compel Congress to call a Convention, in case so many should think
an amendment necessary for the purpose of checking the unconstitutional
acts of that body. Thus, so far as Congress may have the power, it
might exert it to check the usurpations of a state, and so far as the states
may possess it, an union of two-thirds in one opinion might effectually
check the usurpations of Congress, And, under this article of the Con-
stitution, the incontrovertible principle before stated, might become practi-
cally useful ; otherwise no remedy did exist for the only case which could
possibly destroy the Constitution, namely, an encroachment by Congress,
or the states, upon the rights of the other. The case was even strongest
in favour of a check in the hands of the states upon Congress : for although
Congress could never alter or amend the Constitution, without the concur-
rence of three-fourths of the states ; yet such a concurrence would be able
so to alter or amend it, as to check the encroachments of Congress,
although the whole of that body should disagree thereto. The reason for
this will exhibit the unconstitutionally of the argument, which supposes,
that the states hold their constitutional rights by the courtesy of Congress.
It was this : Congress is the creature of the states and of the people ; but
neither the states nor the people are the creatures of Congress. It would
be evidently absurd, that the creature should exclusively construe the in-
strument of its own existence ; and therefore this construction was reserved
indiscriminately to one or the other of those powers, of which Congress
was the joint work; namely, to the people, whenever a convention was
resorted to, or to the states, whenever the operation should be carried on
by three-fourths.
Mr. Taylor then proceeded to apply these observations to the threats of
war, and the apprehension of civil .commotion, towards which the resolu-
tions were said to have a tendency. Are the republicans, said he,
possessed of fleets and armies? If not, to what could they appeal for de-
fence and support? To nothing, except public opinion. If that should
be against them, they must yield ; if for them, did gentlemen mean to say,
that public will should be assailed by force? If so, should a minority, by
the help of the powers of government, resort to force for its defence against
public opinion ; and against a state which was pursuing the only possible
and ordinary mode of ascertaining the opinion of two-thirds of the states,
by declaring its own, and asking theirs ? How could the fifth article of
the Constitution be brought into practical use, even upon the most flagrant
usurpations ? War or insurrection, therefore, could not happen, except
Congress should attempt to control public opinion by force ; and this it
could not be supposed they would ever do, not only because the will of
the people is the sovereign in all republics ; but also, because both that
will and the will of the states, were made the constitutional referee in the
case under consideration. Hence a movement towards this referee could
8
114 DEBATE ON VIRGINIA RESOLUTIONS.
never be admitted as leading to war or commotion, except in those coun-
tries where an armed and corrupt minority had usurped the government,
and would of course behold with abhorrence an arbitrament of a majority.
Such, however, he hoped would be the respect to public opinion, that he
doubtecl not but that the two reprobated laws \yould be sacrificed, to quiet
the apprehensions even of a single state, without the necessity of a conven-
tion, or a mandate from three-fourths of the states, whenever it shall be
admitted, that the quiet and happiness of the people is the true end and
design of government.
With respect, he said, to the remedy proposed in the talents and integrity
of the continental judges, without regarding the prejudices which might
probably exist in favour of the government, from which an appointment
should flow, it might be remarked, that the judges by the Constitution are
not made its exclusive guardians. That if continental judges were the
proper referees as to the constitutionality of continental laws, state judges
were the proper referees as to the constitutionality of state laws ; that
neither possessed a power ovdr the other, whence a clashing of adjudica-
tion might ensue ; and that if either had been superior, the same conse-
quences would result as would flow from a superiority of Congress, or of
the states over the other, with this additional aggravation, that the people
could not by their elections influence a constitutional question, to be decided
by the judges, as they could to a certain extent, when it was to be decided
by a general or state legislature: an influence, however, insufficient; be-
cause it would require six years to change the Senate of the United
States, and four that of Virginia, during which an unconstitutional law
would have done its mischief, which was yet greatly preferable to no
influence at all.
He observed, that the resolutions had been objected to as being couched
in language too strong and offensive, whilst it had also been said on the
same side, that if the laws were unconstitutional, the people ought to fly to
arms, and resist them. To this he replied that he was not surprised to
hear the enemies of the resolutions recommending measures which were
either feeble or rash. Timidity, it was known, only served to invite a
repetition of injury, whilst an unconstitutional resort to arms would not
only justly exasperate all good men, but invite those who differed from
the friends to the resolutions to the same appeal, and produce a civil war.
Hence those who wished to preserve the peace, as well as the Constitution,
had rejected both alternatives, and chosen the middle way. They had
uttered what they conceived to be truth, in firm yet decent language ; and
they had pursued a system which was only an appeal to public opinion,
because that appeal was warranted by the Constitution, and by principle ;
and because it gave an opportunity to the general government to discover
whether they would be faithful to the same principle, and thereby establish
a precedent, which would both now and hereafter have a strong tendency
against civil war. That this firmness, 'which was both exhibited and felt,
was really necessary as an act of friendship to the general government, if it
was true, as some thought, and as the commotion in the public mind
plainly indicated, that a farther progress in their system was full of danger
to itself, and misery to the people. If, said he, we beheld our friend
DEBATE ON VIRGINIA RESOLUTIONS; 115
already advanced to the brink of a precipice without having discovered it,
ought we in friendship slightly to admonish him that the very next step
might precipitate him into an abyss below, or strenuously to warn him of
his danger? Again : If a country was to be defended, into which the foe
could only enter at a single pass, which was fortified and garrisoned,
ought the resistance of this garrison to be feeble and cowardly, and ought
they traitorously to surrender this key into their country, from a confidence
in the enemy 1 Liberty was that country our Constitution the fortress
and ourselves the garrison. Shall we, he said, desert our post without
even a parley with the assailants? If we did, the inevitable consequence
must be a consolidation of these states into one great sovereignty, which
will, from its vast extent, as inevitably settle with rapidity into a monarchy,
and like all other great empires it must resort to those oppressions to sup-
port itself, which make the cup of life bitter to man. That such a degree
of timidity would be as dishonourable as the violent measures which gen-
tlemen on the other side recommended in easels of constitutional infractions,
would be immoral and unconstitutional.
That firmness as well as moderation could only produce a desirable
coincidence between the states, an example of which having been already
set by Kentucky, it behooved us so to act as to avoid a difference of opinion
as to the mode, when we united in the end ; because divisions respecting
either would undoubtedly destroy every hope of a successful issue. In
opposition to the propriety of soliciting this coincidence, the Constitution,
prohibiting the states from entering into a confederation among themselves,
had been quoted. In reply to which he would ask, if an application from
one state to another to learn its sentiments upon a point relative to the
Constitution, was to be considered as unconstitutional, as amounting to a
confederation? In what way could two-thirds of the states consult or
unite, so as to exercise their right of calling a convention under the fifth
article, or in what way could three-fourths ever amend the Constitution ?
This observation evinced the incorrectness of such a construction, as had
also the practice of the states, in submitting each other's resolutions to
mutual consideration, in a variety of instances.
Mr. Taylor then said that the constitutionality of the laws had been
defended by the common law. It had been said that the common law
attaches the rights arising from the law of nations to a sovereignty
wherever it resides : that therefore a power over aliens devolved under the
common law upon Congress, and that sedition being also a common law
offence, they had a right to punish it. If the common law bestowed
powers upon Congress, it was unnecessary to controvert these laws, be-
cause there was hardly any species of oppression which it would not
justify. Heresy and witchcraft were common law offences ; the former
was a complete engine for tyranny. But the Constitution of the Union
did nowhere adopt the common law, or refer to it as a rule of construction.
That as the state constitutions or laws had done so under different
forms, it evinced that the states must have considered an adoption necessary
to give it force, and thinking so, it was impossible that the state conven-
tions which assented to the Constitution, could ever have supposed that
they were establishing a government which could at pleasure dip their
hands into the inexhaustible treasuries of the common law and law of
116 DEBATE ON VIRGINIA RESOLUTIONS.
nations, and thence extract as much power as they pleased. On the con-
trary, the Constitution of the Union does in its face plainly erect a^go-
vernment of powers expressed and limited, and 'not left to be new-modelled
at random, or by ambition, by a reference to obsolete or little known codes
of law, which had never been taken into contemplation during its discus-
sion in any state convention.
Having now gotten rid of objections rather collateral, Mr. Taylor said
that he would come to those which more immediately referred to the
objectionable laws. It had been said that aliens had no rights : that if
they had, such rights were only held by the law of nations, which allows
them to be removed whenever their residence is thought dangerous by the
sovereignty ; and assuming it as granted that the sovereignty of America
is in Congress, it was therefore concluded that the law was constitutional.
In reply to this argument, he observed, that Congress only possessed a
special and limited sovereignty, to be exercised in a special and limited
manner, so as not to conflict with that portion of sovereignty retained to
the several states, and so as not to violate those constitutional principles
prescribed for the preservation of liberty. That aliens, under the law of
nations, were entitled and subjected to the sanctions of municipal law ; and
however their rights as foreigners may be unimportant to us as natives,
yet it was of vast importance that the fundamental principles of our munici-
pal law should not be destroyed, because an alien only was the presenj
victim, since it established precedents, and produced consequences, which
would wound citizens through the sides of aliens. To apply this general
remark, he said, the Constitution was a sacred portion of municipal law.
It had empowered Congress " to define and punish offences against the
law of nations," and it had declared, " that the judicial power shall extend
to all cases in law and equity arising under this Constitution, or the laws
of the United States ; and that the trial of all crimes shall be by jury."
The law of nations was therefore in contemplation whilst defining the
judiciary power. If an alien has done wrong, must it not be a case in
law or equity , or a crime 1 At any rate, must it not be a case arising
under the Constitution, or the laws of the Union? If so, his punishment,
supposing the act criminal, is to be inflicted by a jury: if not criminal, it
is yet referred to the judiciary, by the comprehensive terms " all cases."
Might not precedents then, violating these essential principles of our
municipal law, be dangerous to citizens, when it was recollected that no
difference is contemplated by the law of nations, or that municipal law,
between aliens and citizens touching these rights, Curing the residence of
the former. Again: were not the checks contemplated by the Constitution
weakened by making a President in fact a king of the aliens? Our towns
will abound with men whose every interest depends upon executive plea-
sure. Might they not be used to influence elections ? And what would
prohibit their being forced into the volunteer corps, then to be armed and
officered by the executive? Here ihen, except for the virtues of a terfl-
porary chief magistrate, was a mode struck out, by which a large force
might be embodied and armed, possessing no rights, and completely
dependent on the will of one man. Was this to adjust the balances? Or
DEBATE ON VIRGINIA RESOLUTIONS. 117
did it comport with the principles of republicanism ? If not, in this mode
also might citizens be wounded through the sides of aliens.
A gentleman from Prince George, he said, had urged, that except for
this law, the state of Virginia might admit a French army with Bonaparte
at their head. Of this, he said, there would certainly be as little danger,
as that under it a President should admit an English army. Because,
although it was obvious no nation would call in a foreign force to destroy
itself, yet history was not deficient in cases wherein individuals have
resorted to a foreign force to enslave the nation. That he meant not to
insinuate anything to the injury of the present President; but by retorting
the argument, to show its weakness, by exhibiting the difference between
suffering the residence of foreigners to depend upon the national legislatures,
and surrendering it as a great prerogative, to one man.
It had been argued too, that the power given to Congress to protect each
state against invasion, comprised a power of expelling dangerous incen-
diary aliens; for that Congress ought to be enabled to nip dangerous
designs in the bud.
If power could be gotten by inferences as loose as these, all attempts to
limit it might be relinquished. Dangerous designs ought to be nipt in the
bud. Was it the danger to which the power attached, and not the alien-
age 1 If so, dangerous incendiary citizens might also be nipt in the bud
without trial, and exported at executive will. The protection of a state
against invasion, is imposed upon Congress as a duty, secondary only to
the guarantee of a republican form of government, and not bestowed upon
them as an enlargement of power ; and the reason of it is, that the states
are prohibited from keeping troops or ships of war in time of peace, which
prohibition does not extend to the Union. Greatly as this argument had
been relied on, the propriety of this construction was evinced by two obser-
vations ; one, that the states might as far as. they could protect themselves
against invasion, and even raise troops in time of war, proving that this
was a duty imposed upon Congress, and not an executive power. The
other, that it is also made the duty of Congress to protect the states against
domestic violence, but only on application of the state legislature or execu-
tive. The jealousy evidently exhibited here against the interposition of
Congress, even in cases of actual domestic violence, by no means warrants
the supposition, that they might interpose where apprehensions of danger
only existed. Further, if Congress obtained the power constructively
from that of repelling invasions, there was nothing to limit its exercise to
aliens. Again, and again, the committee were told of the common law
and the sovereignty of Congress. An attempt to excite an insurrection
had been called an offence at common law ; and a power to regulate all
cases arising under the law of nations, it was said, follows sovereignty.
Thus every power was bestowed arising from these copious sources. He
asked, by what part of the Constitution Congress were empowered to
punish all common law offences, and whether that barbarous, feudal, gothic
and bloody criminal code was to be let loose upon us by inference and
implication 1 Domestic violence, said he, is insurrection. Why was Con-
gress specially directed how to act in this common law offence, if they had
118 DEBATE ON VIRGINIA RESOLUTIONS.
an unlimited power to punish all common law offences? As to these
rights of sovereignty, it was fair reasoning to urge, that a particular
donation of a part excluded the idea of a donation of the whole by
way of inference. If this splendid thing called sovereignty had invested
Congress with all the powers arising from the law of nations, why
was it necessary particularly to invest Congress with the power of
punishing offences against the law of nations'? And if Congress,
under this sovereignty, derived to themselves an unlimited power over
aliens, how could it Ijave been necessary to bestow upon Congress the
special power of naturalizing these very aliens? This doctrine of the
rights of sovereignty was as dangerous as false. Dangerous, because its
extent could be never foreseen : false, as violating the idea of limiting a
government by constitutional rules. From this unlimited source, the
British Parliament derives its claim of unlimited power. King, lords and
commons, because sovereign, may do everything. If it was admitted here,
being in fact a common law doctrine, it not only would absorb the com-
mon law powers, and those arising from the laws of nations, but also the
royal prerogatives, and whatever else it bestows upon the British Parlia-
ment. Such a sovereignty would speedily swallow up the state govern-
ments, consolidate the Union, and terminate in monarchy.
Mr. Taylor said, that the laws objected to had been largely defended
within and without doors, upon the ground of laws with similar provisions
having been passed in this state.
Without stopping, he said, to point out the strong distinguishing features
between the state laws and those of Congress, it would suffice to show the
inefficacy of the argument upon other grounds. The powers surrendered
to Congress and reserved to the states, are by the Constitution evidently
designed to be defined, and whether successfully or not, it was yet impossible
to deny the intention of that instrument to concede certain powers to the
one, and to reserve certain other powers to the other. If then it was a
sound argument to assert, that Congress may legislate upon a subject
because a slate has already done so ; that is, that the exercise of the reser-
vation by a state shall enlarge the concession in favour of Congress, it
followed that the reservation so soon as it was used was lost, and that even
the limitations upon congressional power ought to be understood as only
designed to extend it. Further, perhaps no state constitution in America
exhibits that clear and explicit restraint upon a legislative interposition
respecting the freedom of religion, the press, and petitioning, which was
to be found among the amendments of the general Constitution. Was it
defensible then to assert that Congress, though opposed by this positive
constitutional barrier, were yet empowered to legislate co-extensively upon
these subjects with a particular state having no such obstruction to sur-
mount.
He said that this extravagant and unjustifiable mode of construing the
Constitution had even been carried so far as to quote Blackstone, and a
private letter of Mr. Jefferson ; so that if this instrument was to be ex-
pounded, not by itself, but by the law of nations, the common law of
England, the laws of the several states, the opinions of English judges,
and the private letters of individuals, it had only launched us upon the
ocean of uncertainty, instead of having conducted us into a safe and quiet
DEBATE ON VIRGINIA RESOLUTIONS. 119
harbour. That Blackstone's definition of the liberty of the press, con-
sidered as accurate by the gentleman on the other side, amounted to this :
" the right of publishing anything not prohibited by law without the neces-
sity of obtaining a previous license" He wholly quibbles away the liberty
of the press, in the whim of considering the necessity of a lioense as the
only mode of destroying it, whilst he also admits that government may
prohibit it from printing whatever it pleases. Was it not obvious that the
end meditated by the liberty of the press, can as effectually be defeated in
one mode as the other, and that if a government can by law garble, sup-
press and advance political opinion, public information, this great end,
upon which public liberty depends, will be completely destroyed. Accord-
ing to this construction, the Constitution of America has only declared
that Congress shall not intercept writings by a previous examination, and
allowance or rejection ; but that they may make whatever writings they
please illegal and penal in any extent. Read, said he, the Constitution,
and consider if this was all it meant to secure.
Mr. Jefferson's letter, he said, was written before the amendment to the
Constitution which it recommended : but upon which it could not of course
be a comment ; and therefore this letter, if it had lent any aid to the gen-
tlemen on the other side, would be more than balanced by that sublime
and just construction of the Constitution itself, as to the liberty of the
press, to be found in the negotiations of the late envoys to France. But
this letter, as well as plain legal principles, had been egregiously misun-
derstood, and both upon examination, would be found to support the argu-
ment against the laws. The letter, whilst recommending those securities,
for which the amendment to the Constitution was afterwards designed,
urges as an argument, that all were legally answerable for false facts pub-
lished injuring others. This is the letter, and this the legal principle upon
which a common action of slander was grounded : and laws reaching this
evil, existed before the sedition-act, in every part of the Union. By a
small but important deviation both from the letter and the law, a great
and dangerous delusion was resorted to by the gentlemen on the other
side. Falsehood, said they, is punishable by law, and Mr. Jefferson ad-
mits that it ought to be so ; and the sedition-law punishing falsehood only,
both the laws and Mr. Jefferson have united in its approbation previous to
its existence. The great error in this doctrine arose from dropping the
word " fact," and taking that of " falsehood," which includes opinion,"
as well as fact. Fact was capable of proof, opinion was not. To say
that such laws as the alien and sedition existed, would be to assert a fact,
and if he (Mr. Taylor) was prosecuted for it, it might be proved. But to
assert that these laws were unconstitutional and oppressive, and produc-
tive of monarchy, would be an opinion, constituting a degree of criminality
under the sedition-law, subjecting a man to punishment, and yet it was
not a fact capable of being proved. Hence, therefore, the laws of the
land, and Mr. Jefferson's letter, unite in confining punishment to the pub-
lication of false facts, and hence opinions were only made punishable in
tyrannical governments; because there was no standard to determine the
truth or falsehood of opinion.
But he said, it had been violently objected that, supposing these laws are
120 DEBATE ON VIRGINIA RESOLUTIONS.
unconstitutional, the state legislature could have nothing to do with the
subject ; because the people alone are parties to the compact, called the
Constitution of the United States^
To this objection he answered, that although the framers of the Consti-
tution chose to use the style, "we, the people," yet it was notorious, that
in every step, from its commencement to its termination, the sense of the
people respecting it, appeared through the medium of some representative
State Assembly, either legislative or constituent. That the Constitution
itself, in many parts, recognises the states as parties to the contract, par-
ticularly in the great articles of its amendment, and that of admitting new
states into the Union without a reference to the people ; and that even the
government of the Union was kept in motion as to one House of the
legislature, by the act of the state sovereignties. That added to these in-
contestable arguments to show that the states are parties to the compact,
the reservation of powers not given, was to the states as well as to the
people, recognising the states as a contracting party, to whom rights were
expressly reserved. From all which it followed, though it be not denied
that the people are to be considered as parties to the contract, that the
states are parties also, and as parties, were justifiable in preserving their
rights under the compact against violation ; otherwise their existence was
at an end ; for, if their legislative proceedings could be regulated by con-
gressional sedition-laws, their independency, and of course their existence,
were gone. And although it had been within and without doors often as-
serted, that the sedition-act does not extend to words spoken, yet if any
gentleman would read the first section, and consider the terms " counsel
or advise," he would find that words are clearly within its letter, and that
this part of the law seems particularly adapted for a deliberative assembly.
He said he could not but observe, that this doctrine, that the people
are to be considered as the only parties to the compact, was incomplete.
The idea of a person's contracting with himself was absurd. Where was
the other party? He feared, though it was not avowed, that the gentle-
men were glancing towards the old doctrine of a compact between govern-
ment and people; a doctrine which effectually destroyed the supremacy
of the people and the independence of government, no less than the mon-
strous doctrine of allegiance and protection, which falsely supposes, that
the people are indebted to the government for safety, whereas it is they
who erect, support, and protect the government. That it was also curious
to observe, that gentlemen allow the state governments to have been proper
organs of the will of the people, whilst binding them by the measures
leading to the Constitution, and that they still allow these organs to be
capable of expressing their will in the election of senators, and doing any
other acts for the execution of the Constitution, whilst they deny that they
are any organs of public will, for the sake of opposing an infringement of
the same Constitution. Thus, in framing it, and in executing it, in a great
variety of ways, the will of the people was allowed to express itself through
this medium ; but in saving it from violation, it shall be closed up against
them ; so that there shall be as few obstacles as possible against this vio-
lation. The people may petition Congress, said gentlemen, against the
violation, and this was the only proper remedy. Let us, said Mr. Taylor,
DEBATE ON VIRGINIA RESOLUTIONS. 121
f
apply this remedy to another case. Suppose a state should, by law, violate
the Constitution. Would there be -no other remedy, but for the people to
petition that state, or for the judges of that state to decide upon the consti-
tionality of the law? Why would there be another remedy? Because
the Constitution, having bestowed rights upon the general government, a
violation of the Constitution which should infringe those rights, would
justify that government to take measures for its own preservation ; because
the Constitution does not leave the remedy to depend upon a petition of the
people to the aggressor. Reverse the case, said he. If Congress should
unconstitutionally infringe rights reserved to the state governments, should
they depend upon a petition of the people to the aggressor for their
defence? They were then conducted, he said, to this clear position, that
as Congress holds the rights bestowed by the Constitution under that, and
independent of the states ; so the states hold the rights reserved by the
Constitution under that, and independent of Congress ; and of course that
each power possesses the further right of defending those constitutional
rights against the aggressions of the other; for otherwise it would follow,
that the power having constitutional rights, to maintain which was how-
ever unconstitutional, must presently disappear.
He said, that the last argument in favour of the sedition-act had been
drawn from the law pf Virginia respecting treason, which had been read.
With respect to this law, he replied, that the same arguments applied,
which he had before used, to show the impropriety of quoting state laws,
to justify congressional. It would be as just to say, that a state could
pass laws for raising fleets and armies, because Congress had done so, as
that Congress could infringe the liberty of speech, because the states had
done so. The states are expressly forbid to do the one, and Congress the
other. But this reference to the treason law of Virginia furnished a strong
argument to prove the unconstitutionality of the sedition-act. The law
evidently considers sedition as being one species constituting that genus
called treason, which was made up of many parts. It therefore accurately
expresses the idea, of Virginia of the word "treason" and shows how she
understood it, as used in the Constitution. By that, treason is limited to
two items, with the punishment of which only, the general government is
entrusted. Hence it was evident, that Virginia could not have conceived
that Congress could proceed constitutionally to that species of treason
called sedition ; and if this was not the true construction, what security
was derived from the restriction in the Constitution relative to treason?
Congress might designate the acts there specified by that term, and they
might apply other terms to all other acts, from correcting which, that
clause of the Constitution intended to prohibit them ; by doing which, as
in the case of sedition, they might go on to erect a code of laws to punish
acts heretofore called treasonable, under other names, by fine, confiscation,
banishment or imprisonment, until social intercourse shall be hunted by
informers out of our country; and yet all'might be said to be constitu-
tionally done, if principles could be evaded by words.
Mr. Taylor concluded with observing that the will of the people was
better expressed through organized bodies dependent on that will, than by
tumultuous meetings ; that thus the preservation of peace and good order
122 DEBATE ON VIRGINIA RESOLUTIONS.
would be more secure ; that the states, however, were clearly parties to
the Constitution, as political bodies; that rights were reserved to them,
which reservation included a power of preservation ; that the legislature
of the state was under a double obligation to oppose infractions of the
Constitution, as servants of the people, and also as the guardian f those
rights of sovereignty, and that qualified independence reserved to the state
governments by the Constitution ; and to act up to this duty was the only
possible mode of sustaining the fabric of American policy, according to
the principles prescribed by the American Constitution.
Mr. BAYLEY arose next to reply, he said, to the very extraordinary
arguments which had fallen from the gentleman from Caroline, and was
proceeding to do so; but finding that such a noise prevailed, from the im-
patience of the committee to rise, that he could not be distinctly heard, he
declined, and sat down.
On motion, the committee then rose, the chairman reported progress,
asked, and had leave for the committee to sit again.
IN THE HOUSE OF DELEGATES,
Friday, December 21, 1798.
The House resolved itself into a committee of the whole House, on the
state of the commonwealth, Mr. Breckenridge in the chair, when Mr.
John Taylors resolutions being still under consideration,
Mr. GEORGE K. TAYLOR arose, and said that when these resolutions
were first submitted to the committee, they had been disapproved by him ;
and that the time which had since elapsed, with the most mature reflection,
had quickened his disapprobation into complete aversion and entire disgust.
The resolutions contained doctrines and principles the most extravagant
and pernicious ; declarations unsubstantiated by fact ; and an invitation to
other states to concur in a breach of that Constitution which they professed
to support. To substantiate this charge, he would beg the pardon and
patience of the committee, while he examined and criticised certain parts
of the resolutions, and while, agreeably to a promise given on a former
occasion, he should offer some few remarks on the constitutionality of what
is called the sedition-law.
The third clause of the resolutions begins in the following terms :
" That this Assembly doth explicitly and peremptorily declare that it
views the powers of the Federal Government as resulting from the com-
pact to which the states alone are parties." This declaration, however
explicitly and peremptorily made, was unfounded and false : the states are
not the only parties to the federal compact. Considered as particular
sovereignties of detached parts of the Union, they did not give it birth
or organization : the state legislatures were not consulted respecting its
DEBATE ON VIRGINIA RESOLUTIONS. 123
adoption. It was the creature of the people of United America ; their
voice spoke it into birth ; their will upholds and supports it. To demon-
strate this it would be necessary to recur to the history of the present
Constitution, and to examine some of its features.
When the British colonies in America, now the United States, dissolved
their connexion with the parent country and declared themselves indepen-
dent, tfyey entered into certain articles of confederation and union. This
was an act of the states. It was begun by the state representatives in
Congress. The articles of confederation, when digested, were sent to the
legislatures of every state for consideration. They were ratified by the
legislature of each state in the Union. They profess themselves to be
articles of confederation and perpetual union between the states : they re-
late, in every article, not to the people, but to the states : they were sub-
mitted to, and adopted by, not the people, but the states ; and of them it
may truly be said that they were " a compact to which the states alone
were parties."
As these articles of confederation acted exclusively on the states, and
as they prescribed no method of compelling delinquent states to obey the
requisitions of Congress, their weakness and inefficacy became shortly
visible. The most pressing demands were disregarded, or partially
obeyed ; and the evils and expenses of war were thus protracted and in-
creased. Still, however, the American spirit and love of freedom rose
superior to every difficulty, and obtained, after an arduous struggle, peace
and independence. No sooner was the danger removed which had
hitherto compelled some respect to the recommendations of Congress, than
the impotence of that body became conspicuous, and the futility of that
plan of government which possesses no sanction to enforce obedience to its
laws was demonstrated. In defence of our liberties a considerable debt
had been incurred. Justice and policy called on the United Slates to pay
the interest of this debt, if they could not discharge the principal ; but
they called in vain. Congress indeed recommended that a duty of five
per cent, ad valorem, should for this purpose be laid on all goods imported
into the United States ; but their recommendation was disregarded. The
certificate given to the soldier for his toil and blood in the day of battle,
depreciated and became worthless ; every public contract was uncomplied
with; a total disregard prevailed as to national sentiment and honour;
symptoms of distrust, jealousy, and rivalship among the several states ap-
peared. The Union seemed fast crumbling into annihilation, and the national
character at home and abroad was sunk and degraded. The people of Ame-
rica began to be sensible of their situation. Delegates were at first sent
from a few of the states to Annapolis, for the purpose of devising and re-
commending commercial arrangements. These delegates recommended
that a convention from the several states should be appointed for the pur-
pose of revising and amending the articles of confederation. Their idea
was adopted. Each state appointed delegates to this convention, and it
assembled at Philadelphia, for the purpose of proposing amendments to
the articles of confederation.
The deliberation of a few days convinced the convention that an amend-
ment of that instrument was impracticable, and that no government could
124 DEBATE ON VIRGINIA RESOLUTIONS.
be efficient or permanent which operated not on the individuals of the com-
munity, but altogether on the state sovereignties, and which could not
compel obedience to its laws by the punishment of the disobedient and re-
fractory. They adopted, therefore, a plan at once bold and judicious. It
was to recommend a new form of government for general purposes, by
taking from the states the control of all matters relating to the general
welfare, and vesting these in the government of the Union : by dividing
this government into legislative, executive, and judiciary departments,
which should at once prescribe and enforce the rules of general conduct,
without the aid or intervention of the state legislatures, and which should
have power to punish the disobedient and refractory.
Here it was to be observed, he said, that the convention acted without
the express authority of the state legislatures. They were deputed to
amend the old articles of confederation : they were not authorized to pro-
pose new forms of government. Their love of country, indeed, induced
them to attempt a scheme or project of government to be submitted to
their fellow-citizens, and their wisdom enabled them to accomplish its
structure. But the state governments were no parties to this project, since
they deputed the authors of it for different purposes, and were ignorant of
the change about to be recommended.
That the convention itself did not consider that the states were, or would
be the only parties to this compact, was evident from the language used
in the commencement of the new Constitution : " We the people of the
United States, in order to form a more perfect union, &c. ;" not " we the
states of New Hampshire, &c. ;" yet they had the old articles of confede-
ration before them, where the states were constantly mentioned, and the
people not once named. Why was the word " states" purposely discarded,
and the word " people" purposely introduced, if, as these resolutions de-
clare, the states alone are parties to the compact ?
The convention, after having finished the Constitution, came to the fol-
lowing resolutions :
" Resolved, That the preceding Constitution be laid before the United
States in Congress assembled, and that it is the opinion of this convention
that it should afterwards be submitted to a convention of delegates chosen
in each state by the people thereof, under the recommendation of its legis-
lature, for their assent and ratification ; and that each convention assenting
to and ratifying the same, should give notice thereof to the United States
in Congress assembled.
" Resolved, That it is the opinion of this convention, that as soon as
the conventions of nine states shall have ratified this Constitution, the Uni-
ted States in Congress assembled, should fix a day on which electors
should be appointed," &c.
The former articles of confederation being in truth a compact of the
states, were submitted to the state legislatures. The Constitution of the
United States was " submitted to a convention of delegates chosen in each
state by the people thereof." The articles of confederation were assented
to and ratified by the state legislatures. The Constitution of the United
States was assented to and ratified by conventions chosen in each state by
the people thereof. If the states in their political corporate capacity, be as
DEBATE ON VIRGINIA RESOLUTIONS. 125
the resolutions declare, the only parties to the latter compact, why was its
consideration submitted not to the state legislatures, but to the people of
the United States, in their several conventions?
Again : so soon as the conventions of nine states should have ratified
the Constitution, the convention recommended that a day should be fixed
for the appointment of electors, &c., in order that the government should
be put into operation. Why should the commencement of the operations
of the government be postponed until the conventions of nine states should
have ratified the Constitution 1 Because the states were extremely unequal
in size and population, and consequently a majority of conventions might
have ratified the Constitution, when in truth a majority of the whole people
had rejected it : but this could not be the case when the conventions of
nine states had ratified it ; because any nine states formed a majority of
i\\Q people contained in the thirteen. Did not this circumstance then prove,
that the present is a government proceeding from the people, and that they
are material, if not the exclusive original parties to it? If so, how could
it be sard that the states alone are parties to the compact?
Further : the fifth article to the Constitution declares that " the Congress,
whenever two-thirds of both Houses shall deem it necessary, shall propose
amendments to this Constitution, or on the applications of the legislatures
of two-thirds of the several states, shall call a convention for proposing
amendments." In each of these modes of obtaining amendments, the
people are evidently recognised as parties to the compact : " Congress,
whenever two-thirds of both Houses shall deem it necessary, shall propose
amendments:" but one House of Congress, the House of Representatives,
is the immediate representative of the people, the other House, the Senate,
is the immediate representative of the states; whenever then, two-thirds of
the representatives of the people and two-thirds of the representatives of
the states shall concur in deeming it necessary, they may propose amend-
ments. Was not this a recognition that the people generally, as well as
the particular state sovereignties, are interested in the operations of the go-
vernment? How then could the states alone be said to be the parties to
it ? " Or, on the applications of the legislatures of two-thirds of the
several states, shall call a convention for proposing amendments." Here
the idea was still supported, that the representatives of a majority of the
whole people must combine in the application, which majority it is suppo-
sable, will be two-thirds of the states. The article proceeds " which
(amendments) in either case shall be valid to all intents and purposes, as
part of this Constitution, when ratified by the legislatures of three-fourths
of the several states, or by conventions in three-fourths thereof, as the one
or the other mode of ratification may be proposed by the Congress." Thus
Congress might if they should think proper, divest the 'states in their po-
litical corporate character, of all agency in ratifying amendments by sub-
mitting them not to the legislatures of the states, but to conventions of the
people. Did this prove that the states alone are parties to this compact ?
At the time of our separation from the government of Great Britain,
the people of each state in the Union, represented in convention, esta-
blished, for that state, a constitution or form of government. This having
been established by the immediate representatives of the people, deputed
126 DEBATE ON VIRGINIA RESOLUTIONS.
for that particular and especial purpose, is not amendable or alterable ex-
cept by the same people or their representatives, deputed for that special
purpose ; yet the second clause of the sixth article of the Federal Consti-
tution, is in the following words : " This Constitution and the laws of the
United States, which shall be made in pursuance thereof, and all treaties
made, or which shall be made under the authority of the United States,
shall be the supreme law of the land, and the judges in every state shall
be bound thereby, anything in the constitution or laws of any state to
the contrary notwithstanding." By this clause, the Constitution, laws
and treaties of the United States, are declared to be paramount and
superior to the constitution and laws of every particular state ; and
where they may come into collision, the latter must yield to the former.
Who could have deprived the state constitutions of their former supremacy,
and made them subservient not only to the Constitution, but to constitu-
tional laws and treaties of the United States, except the sovereign people,
the source and fountain of all power? And after this should we be told
that the states alone are parties to the compact, when so plain and palpa-
ble a proof was exhibited to the contrary 1*
Let those, said Mr. Taylor, who charge us with anti-republican senti-
ments, and with political blindness or heresy, examine this part of their
own creed, and declare whether it savours of republicanism or orthodoxy 1
We have long and fondly cherished the idea, that all government in
America was the work and creature of the people ; we have regarded
them with reverence and bowed down before their supremacy. But it was
reserved for this period and for this Legislature to convince us of our
error, and to prove that in America, as in Turkey and in France, the
people are nothing, and that the state legislatures are everything.
The fourth clause of the resolutions is in the following words : " That
the General Assembly doth express its deep regret, thai a spirit has in
sundry instances been* manifested by the Federal Government to enlarge
its powers by forced constructions of the constitutional charter which de-
fines them ; and that indications have appeared of a design to expound
certain general phrases, (which having been copied from the very limited
grant of powers in the former articles of confederation, were the less
liable to be misconstrued,) so as to destroy the meaning and effect of the
particular enumeration, which necessarily explains and limits the general
phrases, and so as to consolidate the states by degrees, into one sovereignty,
the obvious tendency and inevitable result of which would be to transform
the present republican system of the United States into an absolute, or at
best, a mixed monarchy"
The charge against the Federal Government, contained in this clause,
Mr. Taylor said, was of the most serious nature, and merited mature de-
liberation before it should be adopted. If it be true, that government was
criminal indeed, and merited, not reprehension only, but the severest
chastisement ; if it be true, the present administrators of that government
should be hurled from their seats with universal execration, and submitted
to the vengeance of a justly enraged people. If it be true, it was our duty
* The answer to this ingenious train of reasoning is given in the Report, post, p. 191.
DEBATE ON VIRGINIA RESOLUTIONS. 127
to advise, and it was the duty of our constituents to practise opposition
and resistance ; to draw the sword from the " sleep of its scabbard," and
to cut out this foul cancer before its roots shall have taken too fatal a
spread. But, was it true 1 If it be, in what instance was it so ? The
resolutions declared, that " a spirit to enlarge its powers, and to CONSOLI-
DATE THE STATES, so as to introduce MONARCHY, has been manifested by
the general government in sundry instances." What were those instances ?
Would it not have been kind and proper to enumerate them, when it was
to enlighten the blindness of those less keen-sighted than our legislative
illuminati ? For we, said he, who approve not these resolutions, discern
not in the government these " forced constructions of the constitutional
charter ;" those " designs to consolidate the states by degrees into one
sovereignty ;" those unconstitutional efforts " to enlarge its powers so as
to transform the present republican system into an absolute, or at best, a
mixed monarchy." On the contrary, said he, we suppose that we see the
best form of government ever devised by human sagacity, wisely adminis-
tered, so as to promote and increase the general prosperity and happiness
of the people. We ask, where is there seen so much real happiness,
prosperity, and liberty as in these United States? We demand, whether
the sun, from his rising in the morning, until his setting beams are
quenched in the west, beholds so fortunate a people? Why, then, should
we interrupt their repose, disturb their harmony, and poison their tran-
quillity, by unfounded suggestions, that their government means to rivet
monarchy upon them ? The " sundry instances" of this intention, men-
tioned during this debate, were a fleet, an army, taxes, the alien and sedi-
tion-laws. What causes have given birth to these measures? A precon-
certed plan of the government to introduce monarchy ? No ! They derive
their origin from a more noble source ; from a determination to reject,
with disdain, the insolent demand of tribute to a foreign nation ; from a
proper care to protect our commerce from the piratical depredations of
that nation, and from a fixed resolve to vindicate our soil from hostile in-
vasion. Let us, I pray you, said he, recollect the history of late events.
Has not our government sent repeated embassies to France, and have not
those embassies been repeatedly and contumeliously rejected ? Was not
General Pinckney threatened with imprisonment? Were not the three
envoys insulted with a demand that their country should become tributary
to France ? and was not that country threatened with the fate of
Venice if the demands should be refused? Was there a man among us
who could bear the idea of paying tribute to any foreign country ? And
when the consequence of the refusal, has been aggravated depredations on
our trade, and the threat of erasing us from the list of nations, was there
one so base who would not prepare for defence ? What was the situation
of things when our small navy was first equipped ? Numbers of French
picaroons at the mouths of all our principal rivers, lay in wait for our
ships, and few of them escaped. What, said he, has been the consequence
since that navy has, been equipped? These pirates have been chased to
their homes ; our coasts are no longer insulted ; the price of the produc-
tions of our soil has increased, and our flag floats on the ocean, respecta-
ble and respected. Was not this measure more wise, more patriotic, and
128 DEBATE ON VIRGINIA RESOLUTIONS.
more economical than to have permitted our trade still to be the prey of
French cruisers, and to have suffered a vital wound to be inflicted on the
industry and happiness of our citizens, from the diminished value of their
commodities, which would have been the unavoidable result? Will not,
said he, this navy enable us, in case of invasion, to transport men and
the munitions of war immediately and expeditiously from one port to
another of the Union ? Will it not be able to gall and distress an invading
enemy ? Why, then, shall so wise and so necessary a measure be construed
into an effort to crush republicanism and establish monarchy on its ruins?
But the regular army which is to be raised will be the death of our
liberty. Standing armies in all countries have been the engines of des-
potism, and they will become so in this.
Fortunately there are two clauses in the Constitution of the United
States, which prove that so long as the representatives of the people remain
uncorrupt, no great danger can be apprehended from standing armies.
The first clause of the seventh section of the first article declares, that
" all bills for raising revenue shall originate in the House of Representa-
tives." The twelfth clause of the eighth section of the same article gives
Congress power to "raise and support armies," but declares, " that no
appropriation of money for that use shall be for a longer term than two
years." It is Congress, and not the President, who are to " raise and
support armies." Armies cannot be raised and supported without revenue.
The bills for raising this revenue must originate in the House of Repre-
sentatives. Appropriations of money to raise and support an army, shall
not be for a longer term than two years. The House of Representatives
itself is elected for two years only. After a first, or at most a second
appropriation for this purpose, a new election of representatives must
take place. If the new House of Representatives deem the -army
useless or dangerous, they will refuse to appropriate for its support,
and it must be disbanded. Thus the danger to be apprehended from
an army raised for an indefinite period appears not to be great. But
the present army, from the terms of its enlistment, was to continue
in service only during the existing differences with France. After they
shall cease it will be disbanded, and while they continue it must be
necessary. For let it be remembered that our foe possesses a lust of
dominion insatiable ; armies numerous and well-disciplined, inured to
conquest and flushed with victory, officers alert and skilful, commanders
distinguished and renowned. Let it be remembered that she is as destitute
of friends as of principle, and that as she has sent one army under Bona-
parte to pillage the East, as a compensation for their services she may
send another for the same purposes to rifle the West. Against this host
of invaders, hungry as death and insatiable as the grave, shall we oppose
only militia? In such a conflict what would be our chance? A band of
militia ill-armed and completely undisciplined, to measure weapons with
men inured to blood, and with whom murder is a science ! How long
would our militia be able to remain in the field ? Each man among them
would at first be hurried from his plough, and from the embraces of his
wife and children, with scarcely a moment's warning. That wife and
those children would soon require his return, or the farm would remain
DEBATE ON VIEGINIA RESOLUTIONS. 129
uncultivated, and distress and misery would be their portion. The first
detachment of militia must then within three or four months be relieved
by another. At the moment when they have formed an idea of the first
rudiments of war, they would be succeeded by others completely new and
undisciplined. Was an army thus composed, likely to prove effectual in
resisting the invasion of veterans inured to combat and accustomed to
victory ? Did the experience of the late war with Great Britain demon-
strate the superlative efficacy of militia? Why were the Southern States
plundered, ravaged, and for a time subdued by Cornwallis ? Because he
was opposed principally by militia, whose want of skill could not resist
the British bayonet. Was the patriotism of the men of 1776 to be now
disputed ? It could not be ; yet they had recourse to regular soldiers, by
whom the great and important victories of America were obtained, and
who, when peace was re-established, although unpaid and distressed, re-
turned peaceably to their homes and their firesides. Of whom was that
army composed 1 Of our fathers and our brethren. Of whom will the
present army be composed ? Of our brethren and our sons. Who led
that army to battle and to conquest? WASHINGTON. Who will conduct
this ? The same great and good WASHINGTON. Will he whose virtue
and honour have been proved in the most trying seasons ,* whose fame
has never been surpassed in the annals of mankind, and who is the con-
stant theme of applause and admiration throughout the globe, in his latter
days prove so degenerate as to become the tool of ambition and the de-
stroyer of liberty ? Of that liberty which his exertions established, and of
that Constitution which he contributed to frame, to organize, and to ad-
minister ? The idea was too absurd to be seriously entertained, and there-
fore this part of the subject, he said, he would dismiss with the following
observation : A regular army was principally composed of men who,
having from choice embraced the military profession, did not by their
absence materially impede the labour of the society, or occasion domestic
difficulties and distress : of militia, a great proportion were fathers of
families, whose absence from their homes was extremely inconvenient and
ruinous. The death of the regular soldier was of little comparative im-
portance the death of the militiaman, who leaves behind him a wife and
family of young children, was a serious evil. The regular army was
prompt, skilful, and effectual ; the militia army must always be languid
in its operations, undisciplined, and ineffectual. Instead, then, of aiming
at monarchy, our government labours, by the establishment of this army,
to secure success to our efforts for freedom, and to spare a lavish and
ruinous waste of the blood of our citizens.
Taxes, he said, are the necessary result of warlike preparations. These
we have been compelled to adopt, by the insolence, the machinations, and
the hostilities of France. They are the present price of our indepen-
dence : and where the stake is so precious, no real American could be-
grudge them.
In the fifth clause of the resolutions, " the General Assembly doth par-
ticularly protest against the palpable and alarming infractions of the Con-
stitution, in the two late cases of the alien and sedition-acts passed at the
last session of Congress."
9
130 DEBATE ON VIRGINIA RESOLUTIONS.
On the subject of the alien-law, Mr. Tai/lor observed, thut. IK; had
before given his ideas at. large, and should ut present only repeat that
from the authorities adduced by him on a former oecn.sion, and from Un-
reason of the thing, it appeared that the entry of an alien into any coun-
try was matter of favour in the sovereign power of that country, and not
matter of right on the part of the alien. During his slay, tin; country t<>
which he has migrated affords him hospitality and protection: during the
same period, he owes respect and obedience to its laws. But the country
exacts from him no allegiance: he is not bound to li^ht the battles oftliat
country: he is exempt from serving in the militia : he is not subject, to
the taxes that have only a relation to the citizens : he retains all his ori-
ginal privileges in the country which gave him birth : the state in which
he resides has no right over his person, except when he is guilty of crime:
he is not obliged like the citizens, to submit to jill the commands of the
sovereign: but, if such things are required from him as ho is not willing
to perform, he may at will quit the country. The government has no
right to detain him except for a time, and for very particular reasons.
The writers on the law of nations therefore universally ai>rce that the
nation has a right to send him away whenever his stay becomes inconve-
nient or dangerous to its repose.
The Constitution of the United States, from its preamble, and from
every article and section of the instrument, demonstrates that it was the
intention and design of its framcrs to vest every power relating to the
general welfare and tranquillity of the Union in the General Government.
Each particular case could not be foreseen ; and therefore the powers are
given in general terms, and conclude with the particular power " to make
all laws which shall bo necessary and proper for carrying into execution
the foregoing powers, and all other powers vested by the Constitution in
the Government of the United States, or in any department or officer
thereof." With this palpable intention of its framers in our view, we
ought to give to the instrument a liberal as well as candid interpretation.
If the General Government possesses not the power of removing danger-
ous aliens, but that power is vested exclusively in the particular states,
one of the principal views of the old confederation would remain in all its
vigour. While through the instrumentality of these characters insurrec-
tion and treason are maturing into birth, the Government will of itself In-
unable to avert the mischief, and must humbly supplicate sixteen indepen-
dent and jealous sovereignties to carry its designs for the public safety
into effect. It must disclose to each state the most important and delicate
secrets, as that state will require testimony before it begins to act. It may
in repeated instances be subjected to the mortification and danger of a
refusal, and the alien might frequently depart from one state willing to
exclude him, and take refuge in another determined to protect him. Thus
the peace and safety of the Union might at all times be endangered ; and
the same government which can declare war against the foreign nation,
shall not before that event takes place, be able to exclude from its soil the
most dangerous and abandoned subject of that nation, although his resi-
dence may be the bane of public tranquillity.
Congress has power " to provide for calling forth the militia, to execute
DEBATE ON VIRGINIA RESOLUTIONS. 131
the laws of the Union, suppress insurrections, and repel invasions." When
the insurrection or invasion ////,s taL r//. place, Congress may by the militia
suppress the one, and repel the other. But the Constitution declares fur-
ther, that ' iho United States shall guarantee to every state in this Union
a republican form of government, and shall protect each of them against
invasion; and on application of the legislature, or of the executive,
(when the legislature cannot ho convened,) against domestic violence."
Tin; power before recited had given Congress power to call forth the
militia to .SV//^/T.S.V insurrections, and repel invasions. The section last
mentioned directs them is protect each state against invasion and domestic
violence. Arc these two clauses of precisely the same meaning and im-
port 1 Then the IVumers of the Constitution were guilty of tautology. But
they are not of the same import. The first gives the power of suppress-
ing insurrections, and repelling invasions, when insurrections or invasions
should exist : the latter directs Congress to protect each state against in-
vasions or domestic violence, which might threaten and impend. Protec-
tion necessarily implies and includes the prevention of mischief and dan-
ger. In protecting the states then against invasion, Congress must use
the means of preventing the evil ; and the clause before recited gives them
in express terms the power to make all laws necessary and proper for
carrying into execution any power vested in them by the Constitution.
Congress then foresaw, from the dispute existing between the United
Slates and France, that war might bo the probable result, and that inva-
sion might ho the consequence of war. To protect the states against this
invasion, a proper measure appeared to be the exclusion of dangerous
aliens. They were vested by the Constitution with power to pass all laws
necessary and proper to protect the states against invasion, and they
therefore constitutionally passed the alien-law.
I !ut against this construction of the Constitution, Mr. Taylor said, a
gentleman from Orange had given the committee an extract from Publius,
of which it could only be said, that the doctrine contained therein, although
unquestionably sound and incontrovertible, did not apply to the present
question. To prove this, let the extract itself, he said, be read again. It
is in the following words : " It has been urged and echoed that the power
to lay and collect taxes, duties, imposts and excises, to pay the debts, and
provide for the common defence and general welfare of the United States,
amounts to an unlimited commission to exercise every power which may
he alleged to be necessary for the common defence or general welfare."
No stronger proof could have been given of the distress under which
these writers labour for objections, than their stooping to such a miscon-
struction.
Had no other enumeration or definition of the powers of the Congress
been found in the Constitution, than the general expressions just cited, the
authors of the objection might have had some colour for it; though it
would have been difficult to find a reason for so awkward a form of de-
scribing an authority to legislate in all possible cases. A power to destroy
the freedom of the press, the trial by jury, or even to regulate the course
of descents, or the forms of conveyances, must be very singularly ex-
pressed by the terms " to raise money for the general welfare." Publius
132 DEBATE ON VIRGINIA RESOLUTIONS.
afterwards proceeds to state other arguments exposing the fallacy of the
opinion urged by the opposers of the Constitution against this article. But
let it be remembered that the subject which Publius was discussing was
this, whether the power given Congress " to lay and collect taxes, duties,
imposts, and excises, to pay the debts, and provide for the common de-
fence and general welfare," gave to Congress a right of legislating on
every subject whatsoever. Now, who among us, said Mr. Taylor, has
cited this clause in favour of the alien-law? Has any one of us, continued
he, contended that Congress possesses the right of legislating on every
subject? And because this clause does not give them such a power, did it
follow that the power to protect the states from invasion does not autho-
rize them, on the prospect of war, to exclude dangerous aliens ? Some
authority more applicable must be produced before we shall be proved to
be in the wrong. In defence of the alien-law, Mr. Taylor observed, that
he would make no further observations, but would call the attention of the
committee for a few minutes, to what is called the sedition-law. In his
remarks on this, from the wide range he had taken, he should be com-
pelled to be much more concise than he had intended to be.
He presumed that it would be conceded by all who heard him, that each
individual possessed from nature certain rights of great value and impor-
tance. Among these was the right to liberty and to life ; and, what was
of no smaller importance than the other two, the right to his good name
and reputation. For even in. a state of nature, where the will of each in-
dividual was his law, and his power the measure of that law, and where
consequently eternal strife and confusion must prevail, a good name would
be of no small importance to its possessor. He, who when chance or
misfortune had thrown his brother savage into his power, did not rob or
abuse him, but bound up his wounds and dismissed him in peace, would
be respected by the man he had benefited, and by all others who should
hear of the circumstance, and would in consequence be in some degree
secure against insult and attack. But in a state of society the possession
of reputation must for obvious causes be of infinite importance. This
state was the result of a compact formed by the component individuals for
the enjoyment of their natural rights to greater advantage and with greater
certainty. Each owes to the regulations of the society implicit obedience ;
and the society is equally bound to guarantee and to vindicate to each, his
natural and social rights. Invasions therefore, against property, liberty, or
life, have been punished in every society and under every form of govern-
ment ; but the natural right to reputation is as dear and invaluable to its
possessor as any other whatsoever ; it is essential to his comfort and hap-
piness ; he could never Ibe supposed to have consented to its surrender ;
and invasions of it ought, therefore, to be* punished by the society as well
as invasions of property, liberty, or life. For no possession whatsoever is
of such real value as an honest fame : in comparison with it, the possession
of property is of little consequence. Property, in reality, adds nothing to
the respectability of its possessor. When lost it may be regained ; or if
for ever lost, its former owner may still be respectable. But the loss of
reputation is a much more serious mischief. It is irretrievable. Who
could bear to be regarded by his fellow-citizens as destitute of principle
DEBATE ON VIRGINIA RESOLUTIONS. 133
and honour, and .to be viewed by the world with contempt and detestation?
Who would be unaffected at being deprived by the stroke of calumny of
the friend he loved? Whose feelings would remain untortured, when the
mistress he adored, whose smiles were those of affection, and whose eyes
proclaimed the dominion of love, should be everlastingly estranged from
him ? When that bosom which before glowed with genial and sympathetic
fires, should, touched by the breath of calumny, become cold and icy as
the everlasting snows that envelope the pole ? Such, were the mischiefs
accruing from the loss of reputation to the individual in his private capa-
city. But suppose him possessed of those virtues which dignify human exis-
tence, and of those talents which adorn it, and wishing to exert those virtues
and those talents in a public capacity for the benefit of his fellow-citizens ;
if his reputation be blasted, or his character tainted, he would be spurned
by those citizens from their presence : his talents would render him an ob-
ject of greater odium : he would remain hated and despised through life,
and execrated even after his death. Was the loss of property then to be
compared with this injury ? Nay, was not the loss of character equal or
superior in mischief to the loss of existence? TJie murdered man dies an
object of universal sympathy and regret, the recollection of his virtues is
cherished, and his foibles and vices are excused or forgotten. But the
man whose reputation is tainted, lives an object of universal contempt and
disgust, and dies the theme of infamy and execration. Accordingly in
every society, and throughout all time, a remedy has been afforded to the
injured individual for calumnious attacks upon his reputation. And what
would be the consequence of impunity to such an offence ? The injured
man, having no redress from the laws of his country, would arrogate to
himself the right of revenge, and a mournful scene of assault, bloodshed
and death, would be the unavoidable and melancholy result. These things
could not be tolerated in a state of society ; and accordingly slander and
libels are punished with us by the common law. By the common law is
understood the unwritten law of nature and reason, applying to the com-
mon sense of every individual, and adopted by long and universal consent.
This common law attaches itself to every government which the people
may establish. It existed in Great Britain when our ancestors migrated
from that country, and it followed them to this. It prevailed in every
state throughout the Union, before their* separation from the British empire,
and it regulates the whole American people now. A government, then,
established by that people for the general safety and general happiness,
will of necessity be guided in cases of general interest and concern, by the
principles and regulations of the same common law. By that common
law, unfounded calumny of magistrates generally, was matter of punish-
ment, of a more severe punishment than in cases affecting the reputation
of private individuals, because in the former instance i\\Q function rather
than the man was the object of attack. And whenever magistrates of a
new description are appointed, the old principles of the common law im-
mediately apply to them, and calumnies against them are of course punish-
able. Thus when these states became independent of Great Britain, a
number of officers of government were created unknown to the former co-
lonial establishments ; but no one had ever thought it necessary to declare
134 DEBATE ON VIRGINIA RESOLUTIONS.
by statute, that slanders of them shall be punishable. When the Consti-
tution of the United States was formed, a new description of officers, before
unknown, was created : the common law pervaded and regulated every
portion of the people which formed that Constitution ; and consequently
the rules of the common law immediately attached themselves to those
officers. Consequently slanders of the President of the United States, of
members of Congress, and of other officers of the general government, are
punishable by the common law ; because slanders of those characters are
injuries not so much to the man, as to the community. Ours is a govern-
ment which must rest for its support on the public sentiment. While the
people approve it, it will flourish ; when they withdraw their affections, it
must expire. Unfounded calumnies against the officers of government,
who administer and conduct it, tend to weaken the confidence and affection
of the people for the government itself. The Constitution of the United
States, it is acknowledged by all, authorizes the government to punish acts
of resistance to its measures. Would it not be strange, if, when it autho-
rizes them to punish acts of resistance, it should prevent them from pu-
nishing acts tending to introduce resistance 1 That the government must
look on tame and passive while the mischief is preparing, and be incapa-
ble of action until that mischief has ripened into effect, when its actions
and operations may perhaps be unavailing. That it shall be fully able to
suppress and punish actual insurrection, but shall be incapable of prevent-
ing it. This would surely be absurd. And as the Constitution of the
United States is the work of the whole American people ; as every man of
that people is regulated by the common law ; as that common law attaches
itself to the state governments, established by that people, and punished
unfounded calumnies of state magistrates, why shall it be said not to
attach itself to the government of the whole American people ? And why
shall it not punish unfounded calumnies of the magistrates of the general
government? Why is the state magistrate protected by the common law?
Because he is a public functionary and calumnies of him injure the public.
Was not a magistrate of the general government also a public functionary ?
Would not calumnies against him also injure the public? And if the
functionary of the part be protected by law, how shall it be said that the
functionary of the whole is left unprotected? Surely reason proclaims,
that in proportion to the magnitude of the trust reposed in the functionary,
would be the mischief arising from false, scandalous, and malicious repre-
sentations of his conduct. The most unfounded calumnies against the
governor of a particular state could only rouse the discontent, or excite
the opposition of that state. But unfounded calumnies against the Presi-
dent of the United States, may paralyse, convulse, and destroy the Union.
The reason of the common law applies, therefore, more powerfully to the
magistrate of the general government than to the magistrate of the state
'government. But this is the general feature of that law, and of reason,
that the person being a magistrate of whatever grade or description, and
being vested with the authority of the laws, ought to be protected.
That the principles of the common law apply to the general government,
is obvious from the second section of the third article of the Constitution,
which declares, that " the judicial powers shall extend to all cases in law
DEBATE ON VIRGINIA RESOLUTIONS. 135
and equity, arising under this Constitution, the laws of the United States,
and treaties made, or which shall be made under their authority," and "to
controversies to which the United States shall be party." The judiciary,
in cases arising under the laws of the United States, will be regulated by
those laws : and in cases arising under treaties, by those treaties and the
law of nations ; but what cases can arise under the Constitution, as dis-
tinguished from cases arising under the laws of the United States and
under treaties, except cases to be decided by the rules and principles of
the common law? And these in "controversies to which the United States
shall be party," will, unless altered or modified by law, operate in their
full extent.
This is not the only instance in which the common law is recognised
in the Constitution ; for the ninth amendment is in these words: " in suits
at common law, where the value in controversy shall exceed twenty dol-
lars, the right of trial by jury shall be preserved; and no fact tried by a
jury shall be otherwise re-exarnined in any court of the United States,
than according to the rules of the common law" When in the re-exami-
nation of facts tried by a jury, the courts of the United States are expressly
prohibited from observing any other than the rules of the common law, the
Constitution itself declares, that the common law applies to those courts ;
and if it applies in one instance, it must apply in all others coming within
their sphere, unless where it is altered by act of Congress.
The common law has been thus shown to apply to the government of the
United States as well as to the governments of the particular states and to
particular individuals. One rule of the common law is, "that he who
writes, utters or publishes a false, scandalous, and malicious libel against
a magistrate or the government, shall be punished by fine and imprison-
ment." The writer, utterer or publisher, therefore, of a false, scandalous
and malicious libel against the government of the United States, or any
magistrate thereof, is at common law, punishable by fine and imprison-
ment.
The objection to the punishment of libels, that truth is the sufficient
antagonist of error, and needs no assistance, Mr. Taylor said, was not
correct: that falsehood was light and volatile; she flew on the wings of
the wind, she spread her mischiefs with inconceivable velocity : that truth
was the child of experience, and the companion of time; she scarcely ever
outstripped, and rarely kept pace with her companion. What mischief in
all ages and in all countries have been occasioned to individuals, and to
the public, by malignant falsehoods, before truth could arrive to detect
and protect them. How would these mischiefs be aggravated, if they
should remain unpunished by the laws? The fairest reputation, when
frequently assailed, must be diminished in the public esteem. Each scan-
dalous report finds some believers; and at length the most charitable will
be disposed to think that such repeated charges could not be made without
some foundation. They will increase in proportion to the talents and ( the
station of the injured individual, and unless they be punished by the laws,
the most splendid abilities, and unsullied virtues, must cease to be useful,
and sink into disgrace.
Mr. Taylor said, from what had been said, it would appear that the
136 DEBATE ON VIRGINIA RESOLUTIONS.
right to punish libels against governments, or their officers, is founded in the
principles of nature, of reason, and of common law. The act of Congress
on this subject, said he, punishes nothing before unpunishable : it creates
no new crime : it inflicts no new punishment : but on the contrary, it mol-
lifies and alleviates the rigours of the common law; for at common law,
the amount of the fine, and the time of imprisonment, are unlimited, and
regulated only by the discretion of the court trying the offence: by the act
in question, the fine is limited at the utmost to two thousand dollars, and
the imprisonment to two years.
But the opposers of this law assert, that however the principles of the
common law may apply to the government of the United States, in ordi-
nary cases, and whatever might have been their original power to punish
libels, this power is now taken away by the third amendment to the Con-
stitution.
This amendment is in the following words : " Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise
thereof, or abridging the freedom of speech, or of the press."
The difference of the terms used in this amendment, Mr. Taylor
said, was remarkable. " Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof." Con-
sequently, they dare not touch the subject of religion at all. But further,
they " shall make no law abridging the freedom of speech, or of the
press;" not "respecting the freedom of speech, or of the press." . When
religion is concerned, Congress shall make no law respecting the subject :
when the freedom of the press is concerned, Congress shall make no law
abridging its freedom ; but they may make any laws on the subject which
do not abridge its freedom. And in fact, the eighth section of the first
article of the Constitution authorizes them in express terms " to promote
the progress of science and useful arts, by securing for limited times, to
authors and inventors, the exclusive right to their respective writings and
discoveries." Now if Congress could not make any laws respecting the
freedom of the press, they could not secure for limited times to authors
their respective writings, by prohibiting those writings from being published
and vended, except by those whom the authors should expressly permit.
They may consequently make laws respecting the press, provided they do
not abridge its freedom. To abridge the freedom of the press, Mr. Taylor
said, was to impose upon it restraints or prohibitions which it did not ex-
perience before ; or to increase the penalties attached to former offences
accruing from its licentiousness. If then the sedition-law does impose
upon the press restraints or prohibitions which it did not experience before
that act was passed, or if it increases the penalties attached to former
offences arising from its licentiousness, it was conceded to be unconstitu-
tional.
But it had been demonstrated, he said, that the common law embraces
and attaches itself to the constitution and government of the United States ;
and that it punishes with indefinite fine and imprisonment the writing,
uttering, or printing false, scandalous, and malicious libels. When the act
in question, then, only punishes the same false, scandalous, and malicious
writing by fine and imprisonment to a definite amount, and for a definite
DEBATE ON VIRGINIA RESOLUTIONS. 137
period, it does not impose upon the press restraints or prohibitions which
it did not experience before, nor does it increase former penalties; it there-
fore does not abridge its freedom, and is consequently constitutional. To
suppose that because Congress are prohibited from making laws abridging
the freedom of the press, they cannot punish the vile slanders and infamous
calumnies which from time to time issue from it, against the government,
Mr. Taylor said, was to suppose that the people of America had given a
solemn and constitutional sanction to vice and immorality; that they had
completely privileged the infamous offence of lying ; and that every indi-
vidual had consented, in case of his being employed by the United States,
to release the society from the protection and vindication of his natural
right to reputation.
The persons who framed the amendments to the Constitution of the
United States, were certainly men of distinguished abilities and information.
Among them was a great proportion of lawyers, whose peculiar study had
been the common law. Perhaps every one of them had read and maturely
considered Blackstorie's Commentaries ; these would inform him, that in-
England, the terms "freedom of the press," had an appropriate significa-
tion, to wit: exemption from previous restraint on all publications what-
ever, with liability, however, on the part of the publisher, to individuals or
the public, for slanders affecting private reputation or the public peace.
Certainly every one of them was acquainted with the laws of his own
state, where the terms " freedom of the press," had precisely the same
meaning as in England. When, then, in the amendments to the Consti-
tution they speak of " the freedom of the press," must it not be presumed
they intended to convey that appropriate idea, annexed to the term both in
England and in their native states? And a reference to Blackstone will
clearly point out, both the emancipation of the press in that country from
its former shackles, and the true import and meaning there and here, of
the term " freedom of the press." " The art of printing," says that valu-
able writer, "soon after its introduction, was looked upon (as well in Eng-
land as in other countries) as merely a matter of state, and subject to the
coercion of the crown. It was, therefore, regulated with us by the king's
proclamations, prohibitions, charters of privilege and of license, and finally,
by the decrees of the Court of Star Chamber, which limited the number of
printers, and of presses which each should employ, and prohibited new
publications, unless previously approved by proper licensers. On the
demolition of this odious jurisdiction, in 1641, the long parliament of
Charles I. after their rupture with that prince, assumed the same powers
as the Star Chamber exercised with respect to the licensing of books, and
in 1643, 1647, 1649 and 1652, issued their ordinances for that purpose,
founded principally on the Star Chamber decree of 1637. In 1662, was
passed the statute 13 and 14 Car. II. c. 33, which (with some few altera-
tions) was copied from the parliamentary ordinances. This act expired
1679, but was revived by statute 1 Jas. II. c. 17, and continued till 1692.
It was then continued for two years longer, by statute 4 W. & M. c. 24;
but though frequent attempts were made by the government to revive it in
the subsequent part of that reign, yet the parliament resisted it so strongly,
that it finally expired, and the press became properly free in 1694, and
138 DEBATE ON VIRGINIA RESOLUTIONS.
has ever since so continued." The same writer thus elegantly defines the
liberty of the press. "The liberty of the press is, indeed, essential to the
nature of a free state ; but this consists in laying no previous restraints
upon publications, and not in freedom from censure for criminal matter,
when published. Every freeman has an undoubted right to lay what
sentiments he pleases before the public : to forbid this, is to destroy the
freedom of the press ; but, if he publishes what is improper, mischievous
or illegal, he must take the consequence of his own temerity. To subject
the press to the restrictive power of a licenser, as was formerly done, both
before and since the revolution, is to subject all freedom of sentiment to
the prejudices of one man, and make him the arbitrary and infallible judge
of all controverted points in learning, religion, and government. But, to
punish (as the law does at present) any dangerous or offensive writings,
which, when published, shall, on a fair and impartial trial, be adjudged of
a pernicious tendency, is necessary for the preservation of peace and good
order, of government and religion, the only solid foundations of civil liberty.
Thus the will of individuals is still left free ; the abuse only of that free
will, is the object of legal punishment. Neither is any restraint hereby
laid upon freedom of thought or inquiry ; liberty of private sentiment is
still left; the disseminating or making public of bad sentiments, destructive
of the ends of society, is the crime which society corrects." "A man
(says a fine writer on this subject) may be allowed to keep poisons in his
closet, but not publicly to vend them as cordials. And to this we may
add, that the only plausible argument heretofore used for the restraining the
just freedom of the press, 'that it was necessary to prevent the daily abuse
of it,' will entirely lose its force, when it is shown (by a seasonable exer-
tion of the laws) that the press cannot be abused to any bad purpose,
without incurring a suitable punishment ; whereas it never can be used to
any good one, when under the control of an inspector. So true will it be
found, that to censure the licentiousness, is to maintain the liberty of the
press."
In England, said Mr. Taylor^ the laying no previous restraints upon
publications, is freedom of the press. In every one of the United States
the laying no previous restraints upon publications hath always been, and
still is deemed the freedom of the press. In England, notwithstanding the
freedom of the press, the publication of false, scandalous, and malicious
writings is punishable by fine and imprisonment. In every one of the
United States, notwithstanding the freedom of the press, the publication of
false, scandalous, and malicious writings is punishable in the same man-
ner. If the freedom of the press be not therefore abridged in the govern-
ment of any particular state, by the punishment of false, scandalous, and
malicious writings, how could it be said to be abridged when the same
punishment is inflicted on the same offence by the government of the whole
people?
If it should be thought that this point required further elucidation, let
us, said Mr. Taylor , look for it in the Constitution of the state of Virginia.
It had been said that the general government, being constituted for particu-
lar purposes, possesses only such powers as are granted : and this was
conceded to be true. It had been also said that the state governments,
being constituted for the general regulation of the people in each state,
DEBATE ON VIRGINIA RESOLUTIONS. 139
possess all powers which the people have not expressly retained to them-
selves ; and this, for the sake of argument, shall also be granted. Yet it
would not be disputed that the powers retained by the people to themselves
in their state Constitution, are as sacred and inviolable as those retained
by the people to themselves in the Constitution of the United States. Now
the people of Virginia, in their state constitution, appear to have been as
jealous of this freedom of the press, as were the people of the United States
in the formation of the Federal Constitution. For if the Constitution of
the United States declares, that Congress shall " make no law abridging
the freedom of speech or of the press," the Constitution of Virginia, in the
twelfth article of the bill of rights, declares, " that the freedom of the press
is one of the great bulwarks of liberty, and can never be restrained but
by despotic governments." The legislature of Virginia therefore, Mr.
Taylor said, could no more pass a law restraining the freedom of the
press, than Congress could pass a \awabridging the freedom of the press.
The liberty of the press could not be restrained without being abridged.
Yet it had never been doubted that false, scandalous, and malicious wri-
tings are punishable in Virginia. In the year 1792 the legislature of this
state passed a law " against divulgers of false news," and no one suggested
that the liberty of the press was thereby restrained. In the same session
another act was passed, declaring " that any person who shall, by writing
or advised speaking, endeavour to instigate the people of this common-
wealth to erect or establish any government separate from, or independent
of, the government of Virginia, within the limits thereof, without the as-
sent of the legislature of this commonwealth for that purpose first obtained,
shall be adjudged guilty of a high crime and misdemeanour, and on con-
viction, shall be subject to such pains and penalties, not extending to life
or member, as the Court before whom the conviction shall be, shall ad-
judge." Neither was this law deemed unconstitutional. Now if the
legislature of Virginia could pass laws punishing divulgers of false news,
and writers advising the people to particular detrimental acts, without re-
straining the freedom of the press, could not the legislature of the Union
punish false, scandalous, and malicious writings tending to destroy the
government, or to bring it into hatred and contempt, without abridging
the freedom of the press 7 To say that they could not, was to declare
that punishing the licentiousness, is abridging the freedom, of the press;
and that licentiousness and freedom are synonymous terms.
Every man, continued Mr. Taylor, has a right to freedom of action;
but no one supposed that this bestowed upon him the right to assault an-
other on the highway. Every one has a right to the freedom of the press ;
but should he use it so as to assault the happiness of an individual or the
repose of society, without being liable to punishment for the mischief he
had occasioned ?
It had been said that false, scandalous, and malicious libels against the
government of the United States, or any officer thereof, are punishable in
the courts of each state respectively ; but this was believed to be incorrect.
Libels against state magistrates, or such officers of the general government
as reside in Virginia, are punishable in our state courts, because the in-
jured persons reside within the limits of the state, contribute to its support,
140 DEBATE ON VIRGINIA RESOLUTIONS.
and are entitled to protection from it : but libels against the magistrates of
a foreign nation, or of a sister state, or of the general government,
residing out of this state, are not punishable in our courts, because the
injured individuals in these cases are not bound by our state laws, do not
sustain the burdens, or contribute to the support of the commonwealth,
and are consequently not entitled to its protection. But it would not be
denied, that an infamous slander of the President of the United States,
tending to produce insurrection, was equally mischievous, if published by
a citizen of Virginia, as if published by a citizen of Pennsylvania. The
courts of the United States, therefore, must take cognizance of the case,
or the offence would remain unpunished. Every public incendiary would,
by palpable misrepresentations and abominable falsehoods, continually
agitate and convulse the minds of the people. That affection towards
the government which alone supports it, would shortly be withdrawn, and
would speedily fall, to rise no more.
On the sedition-law, Mr. Taylor said, he would make no further re-
marks, but would proceed to other parts of the resolutions.
The seventh resolution is in the words following : " That the good peo-
ple of this commonwealth having ever felt and continuing to feel the most
sincere affection to their brethren of the other states, the truest anxiety for
establishing and perpetuating the union of all, and the most scrupulous
fidelity to that Constitution which is the pledge of mutual friendship and
the instrument of mutual happiness, the General Assembly doth solemnly
appeal to the like dispositions of the other states, in confidence that they
will concur with this commonwealth in declaring, as it does hereby de-
clare, that the acts aforesaid are unconstitutional and not law, but utterly
null, void, and of no effect, and that the necessary and proper measures
will be taken by each for co-operating with this state, in maintaining un-
impaired the authorities, rights, and liberties reserved to the states respec-
tively, or to the- people."
On this resolution, Mr. Taylor said, two remarks would be submitted.
The legislature of one state in the Union declares two acts passed by a
majority of the representatives of the whole American people, to be un-
constitutional and not law, but utterly null, void, and of no effect. They
declare this, not as an opinion, but as a certain and incontrovertible fact;
in consequence of which the people of the state owe no submission to the
laws. Have, continued he, the representatives of a part, a power thus to
control and to defeat the acts of the whole 1 In the Congress of the Uni-
ted States, the people of each state are fairly and equally represented in
proportion to the population of that state. If, after a majority in that
Congress have decided that certain laws are constitutional and expedient,
the legislature of Virginia hath a right to annul those laws by declaring
them to be unconstitutional, the old republican maxim that the majority
must govern was exploded, and the Union would be dissolved. If the
state of Virginia could repeal and annul the alien and sedition-laws, she
could repeal and annul any other acts of Congress ; and if she hath the
right, every other state must possess it likewise. '
If any act passed by Congress be unconstitutional, the judges of the
federal court, who are unbiassed by party, and unwarped by prejudice,
and who are selected for their superior talents and integrity, afforded a
DEBATE ON VIRGINIA RESOLUTIONS. 141
constitutional check upon the legislature. The people themselves are an-
other most powerful check ; for they will know the vote of their represen-
tatives, and if they deem the law for which they voted to be unconstitu-
tional, they will order them to depart at the ensuing election, and replace
them with others more wise and more virtuous. Here were two peaceable
and happy modes of correcting the mischief: whereas, for one or more
jealous state legislatures to endeavour to repel or control the acts of Con-
gress by their sovereign power, was at once to introduce disunion and
civil war. The government of the Union, which might have yielded to
fair reason and argument, will never give way to the threats or force of
these rival sovereignties. If they do, the powers and energies of the
Federal Government would be from that moment destroyed. They will
determine to try the experiment whether the Union shall govern a few
states, or a few states shall rule the Union. The certain consequence will
be a resort to arms, civil war, and carnage, and a probable cfismemberment
of the Union.
Of such consequences, in such an event, the framers of the Constitution
were aware. They, therefore, wisely in the tenth section of the first ar-
ticle declared that " no state shall, without the consent of the Congress,
enter into any agreement or compact with another state or with a foreign
power." The resolution last cited, however, invited the other states to
" take the necessary and proper measures for co-operating with this state
in maintaining unimpaired the authorities, rights, and liberties reserved to
the states respectively, or to the people." Could other states co-operate
with this for these purposes, unless by virtue of some previous agreement
or compact 1 To co-operate, was to act in concert. Must not some
agreement or compact among the states precede their acting in concert?
It must in the nature of things. Does not the Constitution forbid this
agreement or compact in positive and express terms? Were we not, then,
inviting our sister states to a deliberate and palpable breach of the Consti-
tution ; and this at the moment when we were so liberally reviling Con-
gress for an imputed breach of the same instrument'? Did their example
authorize us to violate what we had solemnly sworn to support and pre-
serve ? Or did an act which was not to be tolerated in the wicked Con-
gress, become venial or laudable when committed by the saints composing
this Assembly ?
These resolutions, continued Mr. Taylor, must have some ultimate
object ; and it had been demanded what that object was ? The gentleman
from Caroline had answered, that it was ultimately to induce the states to
call another general convention for the amendment of the Constitution.
How unfortunate and ruinous such an experiment would be, the reflection
of a few moments must convince us.
When the circumstances and the time when the convention assembled
which formed our present Constitution, and the importance and difficulty
of the task which they undertook and executed, were considered, we had
ample cause to return our fervent thanks to the Almighty for the issue of
their labours. At that time the weakness and inefficacy of the articles of
confederation was perceived and acknowledged by us all ; our contracts
were undischarged ; our credit was destroyed ; and our character as a
142 DEBATE ON VIRGINIA RESOLUTIONS.
nation was contemptible both at home and abroad. All America united
in the sentiment that change was essential: all America deputed members
to the convention which introduced that change. Foreign nations despised
us too much to interfere in the deliberations of that body, or of the state
conventions which afterwards adopted the instrument. Even under these
circumstances, the harmony with which the plan was recommended, and
the unanimity with which it was adopted, were subjects of amazement and
wonder.
But what would be the consequence and effect of a convention sum-
moned to amend the Constitution at the present moment ? Now, said he,
party-spirit unfortunately flames and rages. Some think the Constitution
as perfect as it could be made, while others consider it as the harbinger of
monarchy, and others again, supposed that the powers of government re-
quire an increase of energy and power. A spirit of mutual concession
could no longer be expected. The delegates from the northern and
southern parts of the Union would behold each other with jealousy and sus-
picion. They would never unite in the same project. They might agree
indeed, in pulling down the present building, but they would never agree in
erecting another.
This too, is a period when the whole European world is convulsed and
in arms ; our rising importance attracts their attention and excites their
fears. Even in the present state of things, their ministers and agents
were continually intriguing among our citizens. Would they remain idle
and unemployed while the convention was deliberating? Would they not
afford fuel to the flame of parly, and prepare the public mind to reject
every scheme which might be proposed ? Was it not reasonable to be ex-
pected that the consequence of their exertions, and our own ferments,
would be confusion, anarchy, civil war, and disunion? Enjoying, then,
as we do, every happiness to which reason can aspire, shall we, said he,
wantonly attempt a change by which little could be obtained, and every-
thing might be sacrificed.
In Virginia, Mr. Taylor said, the general sentiment was that the govern-
ment of the United States verges towards, and will ultimately settle in, a
monarchy. But the measures of that government are supported by a
majority of the House, of Representatives, and by a still greater majority
of the Senate. From this obvious proof of the prevailing sentiment
throughout the Union, was it to be expected that another government
would be framed vesting smaller or fewer powers in the executive, than he
at present exercises? Would not our object, on the contrary, be defeated,
since the general convention would probably enlarge instead of diminish
the powers of the national government? No other consequence, there-
fore, could at the present time, and under existing circumstances, follow
such an experiment, but increase of dissatisfaction and disgust, and a
more ardent disposition to dissever the bonds of union which now connect
all America.
In such a convention, in vain should we reckon on the superior impor-
tance, power, and influence of Virginia. A majority of states would
never agree to summon another convention unless it should be previously
agreed and declared that the votes shall be taken as in the former conven-
DEBATE ON VIRGINIA RESOLUTIONS. 143
tion, by states. In such a convention, where the influence of Delaware or
Rhode Island would be as great, and their respective votes would weigh as
much as those of Virginia and Pennsylvania, what would be our chance
of carrying our particular objects into effect. The smaller states already
behold us with jealousy and apprehension. Each representative would
come prepared to watch, to oppose and circumvent every other. 'Northern
and southern, eastern and western parties and interests would immediately
appear; and the convention, after a restless and turbulent session, which
would increase instead of diminish the rage of faction among their con-
stituents, would rise in confusion. The sound of peace would be no longer
heard ; the sentiment of union would no longer continue, but the sword
would be drawn, the union for ever dismembered, and the bloody history of
Europe would be retraced in the melancholy annals of divided and hostile
America.
How sad and gloomy a contrast would such a state of things afford to
the present flattering and happy aspect of our affairs. At this day', said
Mr. Taylor, America, united under one government, experiences an in-
crease of wealth and population unknown to any other country. Mild
and equal laws, industrious and enterprising citizens, peace among our-
selves and respect from foreign nations, render us the envy of every other
part of the globe. Mr. Taylor then concluded with the following observa-
tion : May HE who rules the hearts of men, still dispose us to yield obe-
dience to the constitutional acts of the majority ; may He avert the mis-
chiefs which these resolutions are calculated to produce; may He increase
the love of union among our citizens ; may no precipitate acts of the Le-
gislature of Virginia convulse or destroy it ; and to sum up all in one
word, may it be perpetual !
Mr. GILES arose next, and said, as he had but lately appeared before the
committee, he would not have obtruded any observations upon it, had not
some remarks which had fallen from gentlemen made some impression
upon him. Therefore, though unprepared, he would make a few obser-
vations. He then observed, that for several years past he had had an
opportunity of considering the systems pursued by both the state govern-
ment and General Government. Of those he considered the system of
Virginia the best and mildest. For after twenty years' operation, little
mischief could be proved to have proceeded from it; but, on the contrary,
much good had been done by the administration of it in that time. There
had been no complaint that he had heard respecting the injury of person or
property ; and there had been at the same time less energy in it than in any
other government whatever. The injunctions of law had been duly obeyed,
and of the laws of the United States particularly, of as much so here as in
any other state. What had been the cause of this 1 Not the rigour, but the
mildness of the laws. And were such principle always to be attended to,
the necessity of energy in the executive branch would never exist. Mr.
Giles then asked what was that energy ? It was despotism. Whence had
sprung the distinction of parties? Not while Virginia was left to herself.
He then proceeded to pass a high eulogium on her system, which had
been felt by him in private life ; 'for he confessed that he had never acted
144 DEBATE ON VIRGINIA RESOLUTIONS.
in a public character in this body before? Whence then did party-spirit
arise ? It had been since that new doctrine had taken place of strength-
ening the hands of the executive of the United States, to give it an energy.
And he proceeded to show of what kind that was.
Since 4hat period, he said, efforts to resist had originated. Mr. Giles
then requested the committee to examine the powers of the General
Government, and observe what was the opinion formed of them at its com-
mencement. He then mentioned certain systems which had been esta-
blished in the course of its operation, such as the funding-system, bank,
&c. These systems being established, it would be thought necessary from
time to time, to give them energy. He said, there was a kind of sophistry
used by the General Government in assigning that for the means which
was in fact the end ; and stated for example the case of invasion and
insurrection. The sedition-law had been called the means for preventing
them ; but he (Mr. Giles) declared the contrary to be the fact. The sedi-
tion-law was truly the end, and an invasion was made use of as the means
to introduce it. He would examine the Constitution, he said ; and there
he found the language as plain as the English language could be. Still,
however, that language, plain as it was, was avoided by calling an end a
means. The sedition-law, then, was an end to suppress a certain party
in the United States. But it had been predicted by gentlemen, that many
mischievous consequences would attend the adoption of the plan proposed
by the resolutions before the committee. Mr. Giles contended, however, that
if such consequences did take place, they would not proceed from any act
of this Assembly, but from these acts of Congress already passed. As for
himself, he wished as much as others' to preserve happiness. His efforts
were tending to that end. An oath, too, had been spoken of. What was it ?
" To support the Constitution of the United States." It became then the
duty of the members of this Assembly, who had taken such an oath, to
support the Constitution. But it had been said, that on this occasion a
resort must be made to the judiciary and to the people. Why so ? said
Mr. Giles. The members of this Assembly have taken the same oath to
support the Constitution as the judiciary and the people. It became then
as much their duty to support it, as it was that of the others. He then
asked, how was the Constitution to be supported ; and said, that it was
by resisting all attacks upon it, not any particular acts only. But the
right of the members of this Assembly to speak their opinions upon the
subject was questioned. It was said, that they must inform the people so :
that they must do it, that the judges must do it, and that they their repre-
sentatives wished not to do it themselves. Mr. Giles then said, that
the measures of our present government tended to the establishment of
monarchy, limited or absolute. It had been said, too, that tjie people only
were parties to 'the compact. But Mr. Giles asked what was an associa-
tion of people ? A federal 1 No ; it was a social compact. How then
would they support it as a federal compact, if it were only a social com-
pact ? The state government was truly of the latter kind. The General
Government was partly of each kind. The objection to the word only
then was correct, and before he concluded, he should move to strike it
out. But he acknowledged that they were then acting as a state. The
DEBATE ON VIRGINIA RESOLUTIONS. 145
gentleman from Westmoreland had delivered his opinion respecting the
formation of the government. In this opinion, Mr. Giles said, the gentle-
man was partly correct, and partly incorrect. The United States would
perhaps have been in a different situation, if what the gentleman had
asserted had been established. He then proceeded to show in what man-
ner several states in the Union appointed their electors to choose a Presi-
dent, which was by their legislatures. The federal idea, then, of the other
side was not correct. And if, on the other hand, the government were a
social compact, he pronounced monarchy to be near at hand, the symp-
toms and causes of which he particularly pointed out : and concluded that
the state legislatures alone, at this time prevented monarchy. He then
said, that in proportion as the powers of the government were extended,
new excuses for more energy would arise. And what was energy ? A
coercing of the public will. He then observed how little energy was
exerted in Virginia. The energy of the laws was sufficient. He hoped,
then, that the right of the committee to proceed to examine the subject
would not be denied. The gentleman from Prince George had dwelt upon
the present happiness of the people, to disprove which Mr. Giles called to
mind the rigorous proceedings of the government, and particularly cited
the case of Matthew Lyon, whom, notwithstanding the reports propagated
to his prejudice, he said he would aver to be a man of much worth. The
effects of these laws of Congress were not yet sufficiently known. The
medium of information had heretofore been contracted and imperfect.
This House was then undertaking to make them more known. The criti-
cal situation of the United States, too, had been mentioned : that France
and England both had a view towards us ; and that therefore great cau-
tion should be used.
He then proceeded to take notice of the measures adopted by the last
Congress. The cause for them held out, was the danger to be apprehended
from a certain foreign power. This cause had produced the laws respect-
ing the navy, the army, aliens, and the sedition-law, which last operated
upon citizens, and not foreigners. Those gentlemen, he said, who never
had been about the seat of government, could form no conception of the
exertions of persons who were continually infusing into men's minds, the
notions of, energy. Mr. Giles then read an answer of the President of
the United States, to show what he had in view in respect to that foreign
power so much feared. It was his answer to the address of the people
of Bath. He read it, and proceeded to comment on the latter part of it
respecting a party in Virginia to be crushed into dust and ashes. He
asked what was that party ? They were said to be French partisans.
But by whom were they so called ? He asked, too, who were the fa-
vourers of the resolutions 1 Not Frenchmen, but good citizens. This
was the party then to be crushed, before the schemes of the President
could be effected. He said that he could produce more answers of the
President, avowing the same principles and design, as that already cited,
but he would not tire the committee with them. He declared himself,
however, to be as good a citizen as the President. Why then was he to
be crushed into dust and ashes 1 He then expressed his disapprobation
of the measures adopted by the government respecting the army and
10
146 DEBATE ON VIRGINIA RESOLUTIONS.
navy. He asked, of what characters would they be composed 1 Of the
idle and dissipated part of the community ? On the contrary, who were
the patriots who would protect their country 1 This very party mentioned
by the President would repel any invasion. It was true they had no
arms, but they would find arms. Mr. Giles then said that he approved
of the argument used by the gentleman from Caroline, respecting the vo-
lunteers, but wished it to be somewhat more extended. He thought it a
much more serious matter than any other. The gentleman from Caro-
line had used it in regard to the President's enlisting aliens merely. But
Mr. Giles said he would ask, further, of whom those companies were to
be composed ? Not of farmers or farmers' sons, but chiefly of aliens. He
himself believed that the operation of the last-mentioned law was intended
to unite both. But it was said the people would protect the Constitution ;
that the judges would protect it. He then observed, that opposition to
foreign power was always the pretence to usurpation. To prove that, he
instanced the case of Rome. There, he said, whenever the people found
themselves oppressed, and solicited redress, they were told by their rulers
that was not the time; that the commonwealth was in danger; that the Volsci
were at their gates. Mr. Giles then said, that by the measures adopted
by the last Congress, nothing had been left undone to carry us into
monarchy. But union was now said to be necessary. What was that
union for ? To abridge the freedom of the press. Was that desirable ?
He compared this to the case of robbers forming an union for the purpose
of robbing. And said, that good was the object of the union of the states,
and not mischief. He then adverted to the distinction between opinion
and fact. He said Mr. Jefferson's was a good distinction. And that the
assertion of false fact was punishable before the sedition-law was passed ;
but the assertion of false opinion was not. There was no standard to as-
certain that ; there was, however, in respect to false fact. This sedition-
law, then, deprived men of the freedom of speech. It prescribed the
punishment of a new thing. Opinion heretofore, had ranged at large, had
always prevailed. Mr. Giles then asked, how was the restriction of
opinion introduced in France. It was brought about in Robespierre's
reign of terrorism. He then asked how this party mentioned by the Pre-
sident was to be crushed? Incarceration would not be sufficient. In
regard to the restriction of opinion, he compared our situation to that of
France, in the reign of Robespierre. As for himself, he feared not the
system, but thought the most effectual mode was now pursued to introduce
the same despotism here as had prevailed in France. He approved the
mode adopted by the resolutions, in making a declaration to conflict with
other opinions. He then referred to our situation, and said that he felt
himself as much interested as any one to ward off war, but he thought
the worst of all things was ultimately submission ; and that a constitu-
tional violation was more degrading than anything. But the resolutions
had been charged with containing invective. He said if there were any,
it must arise from simple language, expressing simple truths. However,
if better could be used he would be willing to agree to it. But he doubted
whether should even the Lord's Prayer be introduced before them, and
undergo a criticism, they could be brought to agree to it. It had been
DEBATE ON VIRGINIA RESOLUTIONS. 147
said, that if this Assembly critically examined the measures of the general
government, they should use more pleasant terms. But Mr. Giles said
they were not terms, but truths that were unpleasant. He proceeded next
to consider the alien-law, and to answer the observations of gentlemen in
respect to aliens having no rights. In advocating the rights of aliens, he
said, he did not consider what was popular, but what was justice. A stranger
coming into a country had a right to protection. It was not a matter of
favour only. A great number of persons already admitted into this
country, he said, were not citizens. They would be affected by this law.
He insisted that aliens were not only entitled to a trial by jury, but to that
particular benefit of a jury de medieta telinguce, by the law in force both
in England and here. It had been said, however, that this was not a
trial of guilt, but to prevent it. That, he said, made no difference. A
trial was still necessary. He conceived that there was no foreign, but a
domestic reason for this law. It was said that the French were ambitious.
But was this a ground for the laws to affect our domestic operations ? If
they were repealed the government would be as firm as it was now. The
administration, he said, was not the government. The government could
subsist without it. For instance, it was once thought in Switzerland that
it was necessary to keep a bear amongst them, for their prosperity and
safety. After awhile the bear broke his chain and run away. For some
time after, the people continued to lament his escape, and expected that
some dreadful calamity would befall them. But, after waiting some time,
and finding that no such calamity arrived, they began to bring themselves-
by degrees to believe, that the bear was of no use, and that they could do
as well without-him, as with him. Mr. Giles then said that he was as
much in favour of government as any man, and would contribute as
liberally to its support, but was not an advocate for improper measures.
He then proceeded to consider the sedition-law. He observed, that the
gentleman from Prince George had mentioned the God of Heaven. But
he had nothing to do with the Constitution. If he had, it was omnipotent.
On the contrary, Mr. Giles said, that the powers of government were
derived from the Constitution, and not from the reason and nature of
things. Implication, he said, was a dangerous doctrine. There was an
express prohibition of all powers not granted by the Constitution. The
Constitution and this law convey to the mind different impressions. The
derivation of power, he again insisted, could not be proved otherwise than
from the Constitution. The powers not given by that were retained to
the states, or to the people. What, then, was given to each 1 The general
government, he said, should not be entrusted to decide upon character, or
in case of murder. That power was reserved to the states. That was
the proper authority for regulating and deciding upon these matters. Mr.
Giles made some further observations on the last clause of the law last
mentioned, and then said, that declaring these acts of Congress unconsti-
tutional, satisfied the oaths of the members of this Assembly. He would
agree to stop after that, if they thought proper, and to strike out everything
beyond it. If gentlemen thought the laws were unconstitutional, they
were bound to say so, otherwise it would be a dereliction of the oath
which they had taken. For his part, he said, he should vote for some-
148 DEBATE ON VIRGINIA RESOLUTIONS.
thing which would express his opinion upon the subject. He would,
however, at any rate, move to strike out of the resolutions before the
committee, the word alone.
Mr. NICHOLAS seconded Mr. Giles's motion for striking out of the resolu-
tions the word, alone; and further observed, that either the gentleman
from Prince George or himself, misunderstood the gentleman from Caro-
line, in respect to calling a convention. He hoped, therefore, that the gen-
tleman from Caroline would explain himself upon that point. Mr. Nicho-
las then stated what he understood that gentleman to say, which he himself
approved ; but on the contrary, did not approve the calling a convention.
Mr. BOLLING said, that he understood the gentleman from Caroline in the
same manner that the gentleman who was last up did, in respect to calling
a convention: Mr. Soiling also made several observations to show that
the gentleman from Prince George had misunderstood Mr. Jefferson's
letter which had been quoted by him.
Mr. JOHN TAYLOR said he would explain in a few words what he had
before said. * That the plan proposed by the resolutions would not even-
tuate in war, but might in a convention. He did not admit, or contem-
plate, that a convention would be called. He only said, that if Congress,
upon being addressed to have those laws repealed, should persist, they
might, by a concurrence of three-fourths of the states, be compelled to call
a convention. Mr. Taylor further said, that while up he would himself move
to strike out certain words of the resolutions, if the same were in order ;
which being agreed to without a question taken, Mr. Taylor proceeded to
do so.
The original resolutions offered by him to the House, and referred to
the committee of the whole House on the state of the commonwealth, were
in the following words :
Resolved, As the opinion of this committee, that the General Assembly
of Virginia doth unequivocally express a firm resolution to maintain and
defend the Constitution of the United States, and the Constitution of this
state, against every aggression, either foreign or domestic, and that it will
support the government of the United States in all measures warranted by
the former.
That this Assembly most solemnly declares a warm attachment to the
union of the states, to maintain which, it pledges all its powers ; and that
for this end it is its duty to watch over and oppose every infraction of
those principles, which constitute the only basis of that union, because a
faithful observance of them can alone secure its existence, and the public
happiness.
That this Assembly doth explicitly and peremptorily declare that it
views the powers of the federal government as resulting from the compact,
to which the states alone are parties, as limited by the plain sense and in-
tention of the instrument constituting that compact ; as no further valid
than they are' authorized by the grants enumerated in that compact; and
that in case of a deliberate, palpable, and dangerous exercise of other
DEBATE ON VIRGINIA RESOLUTIONS. 149
powers not granted by the said compact, the states, who are parties thereto,
have the right, and are in duty bound, to interpose for arresting the pro-
gress of the evil, and for maintaining within their respective limits, the
authorities, rights, and liberties appertaining to them.
That the General Assembly doth also express its deep regret that a
spirit has, in sundry instances, been manifested by the federal government,
to enlarge its powers by forced constructions of the constitutional charter
which defines them ; and that indications have appeared of a design to ex-
pound certain general phrases (which having been copied from the very
limited grant of powers in the former articles of confederation, were the
less liable to be misconstrued), so as to destroy the meaning and effect of
the particular enumeration, which necessarily explains and limits the gene-
ral phrases, and so as to consolidate the states Uy degrees into one sove-
reignty, the obvious tendency and inevitable result of which would be to
transform the present republican system of the United States into an abso-
lute, or at best, a mixed monarchy.
That the General Assembly doth particularly protest against the palpa-
ble and alarming infractions of the Constitution, in the two late cases of
the " alien and sedition-acts," passed at the last session of Congress, the
first of which exercises a power nowhere delegated to the federal govern-
ment ; and which by uniting legislative and judicial powers to those of
executive, subverts the general principles of free government, as well as
the particular organization, and positive provisions of the Federal Constitu-
tion ; and the other of which acts exercises in like manner a power not
delegated by the Constitution, but on the contrary expressly and positively
forbidden by one of the amendments thereto ; a power which more than
any other ought to produce universal alarm, because it is levelled against
that right of freely examining public characters and measures, and of free
communication among the people thereon, which has ever been justly
deemed the only effectual guardian of every other right.
That this state having by its convention which ratified the Federal Con-
stitution, expressly declared, "that among other essential rights, the liberty
of conscience and of the press cannot be cancelled, abridged, restrained, or
modified by any authority of the United States," and from its extreme
anxiety to guard these rights from every possible attack of sophistry or
ambition, having, with other states, recommended an amendment for that
purpose, which amendment was in due time annexed to the Constitution,
it would mark a reproachful inconsistency and criminal degeneracy, if an
indifference were now shown to the most palpable violation of one of the
rights thus declared and secured, and to the establishment of a precedent
which may be fatal to the other.
That the good people of this commonwealth having ever felt, and con-
tinuing to feel the most sincere affection to their brethren of the other states,
the truest anxiety for establishing and perpetuating the union of all, and
the most scrupulous fidelity to that Constitution which is the pledge of
mutual friendship, and the instrument of mutual happiness, the General
Assembly doth solemnly appeal to the like dispositions of the other states,
in confidence that they will concur with this commonwealth in declaring,
as it does hereby declare, that the acts aforesaid are unconstitutional, and
150 DEBATE ON VIRGINIA. RESOLUTIONS.
not law, but utterly null, void, and of no force or effect, and that the ne-
cessary and proper measures will be taken by each, for co-operating with
this state in maintaining unimpaired the authorities, rights, and liberties
reserved to the states respectively, or to the people.
That the Governor be desired to transmit a copy of the foregoing reso-
lutions to the executive authority of each of the other states, with a request
that the same may be communicated to the legislature thereof.
And that a copy be furnished to each of the senators and representa-
tives, representing this state in the Congress of the United States.
The word "alone" in the third clause, and the words "and not law,
but utterly null, void, and of no force or effect," in the seventh clause, were
stricken out of the foregoing resolutions.
Mr. John Taylor's resolutions thus amended, being then read by the
chairman, Mr. Brooke moved to amend the same, by substituting in lieu
thereof the resolution which he had offered to the committee on Tuesday,
the 18th instant, and which was then laid upon the table. The question
was put thereupon, and the amendment disagreed to by the committee.
The main question was then put on Mr. John Taylor's resolutions as
amended by himself, and agreed to.
The committee then rose, and Mr. Breckenridge reported, that the com-
mittee of the whole House on the state of the commonwealth had had the
same under their consideration, and had come to certain resolutions
thereupon, which he handed in to the clerk's table,' (being Mr. John
Taylor's resolutions, as a5ove stated, amended and agreed to by the com-
mittee.)
General LEE then arose and observed, that although desirous of ending
the debate, yet wishing, with the gentleman from Amelia, to meliorate the
paper before them, by striking out some other part of the resolutions, he
would move an amendment to that effect. He then read the fourth clause
of the resolutions, and objected to the same as containing assertions which
he could not believe, and at the same time also a high charge against the
general government. He therefore moved to strike out that clause.
Mr. ROLLING said, that in order to convince the gentleman from West-
moreland of the futility of his proposition, he hoped that no other gentle-
man would disgrace himself, and the wisdom of the House, by gratifying
the gentleman with a reply on the occasion. He (Mr. Boiling) had arisen,
therefore, to second the gentleman's motion, and to give him complete
satisfaction by bringing the question to an end.
Mr. GILES made some remarks in favour of the clause proposed to
be stricken out. He stated several reasons to show why it should be
retained ; and concluded by expressing his objection to its being stricken
out.
Mr. NICHOLAS hoped the motion made by the gentleman from West-
moreland, for expunging the clause in question, would not prevail. With-
out that clause, it was true, he would vote for the resolutions, but his
DEBATE ON VIRGINIA RESOLUTIONS. 151
anxiety about them would be very much lessened, if it was expunged ;
for then it would appear, that none of the measures of the Federal
Government were objected to but the alien and sedition-bills. This
was not the fact ; and it must also be in the recollection of many
gentlemen in that House, that some of those members who were now
most loud in support of the measures of which he and his friends com-
plained, and who denied with most confidence the right of the Assembly
to interfere, had themselves upon other occasions acted very differently,
and justified that interference. One of the gentlemen distinguished him-
self in a particular instance, for which he had his most hearty approbation,
as he considered it a subject highly interesting to the happiness of his
country. How gentlemen could reconcile their opinions at past periods,
with those they supported at this day, it was incumbent upon them to
show. Mr. Nicholas said, it was with the deepest regret that he reviewed
the principal measures of the Federal Government, as they appeared to
him to tend directly to a consolidation of the state governments, which he
believed would eventuate in monarchy. Upon all questions about the di-
vision of power, everything had been given to the executive from Con-
gress, everything to Congress from the states. The general phrases in
the Constitution, which were only intended to explain and limit the powers
of the general government, have been considered as giving powers, thereby
destroying the effect of the particular enumeration of powers, and of the
security derived from the twelfth amendment to the Constitution. He
would state the particular acts which he thought most obnoxious. The
first in point of time were the bank and assumption laws, for which he
could find no authority in the Constitution of the United States, and by
which the commercial and monied interests of this country had been de-
voted to certain individuals and their theories, and concentred a force more
powerful and operative than an army of twenty thousand men. The
British treaty and its effects were so well known to this House, that it was
unnecessary to dilate upon that subject. The doctrine about appropriations
of money was so important in its consequences, that it merited the most
serious attention of the people of America. The Constitution declares,
that " no money shall be drawn from the treasury but in consequence of
appropriations made by law ;" notwithstanding which, it is now contended,
that the President may by his single act, bind the Congress to make appro-
priations, whether they deem them proper or not, thereby transferring from
the representatives of the people to the executive magistrate, the command
of the national purse. The stamp-act subjects the people to an obnoxious
and inconvenient tax, and changes already, and may change still more
hereafter, the system of evidence which the state laws required in their
own courts. The ultimate effect of this may be to shut up the state
courts ; for it is even contended, that delivery bonds are subject to the tax.
If this be true, other process may be taxed so highly as may amount to a
denial of justice : the transferring the important power of borrowing-
money and raising armies, vested by the Constitution in Congress, to the
President : the utter neglect of the militia : the attempt to render them
useless and unnecessary, by raising standing armies, and by authorizing
the President to employ any number of volunteers that he may think
152 DEBATE ON VIRGINIA RESOLUTIONS.
proper, when the only reason for a preference of volunteers that occurred
to him was, that the President had the appointment of the officers of those
corps, whereas the militia officers were appointed by the state govern-
ments, greatly excited his suspicion. He confessed, his objections to
these corps had been very much increased since he had seen a letter from
the Secretary of War,* from which it appeared to him that the design was
to arm one part of the people against the other. He well remembered,
that when the Constitution was under discussion, great stress was laid
upon this circumstance ; and it was believed it would give great security
to the state governments, and to the liberties of the people ; but so great
a revolution had a few years produced, that some gentlemen were willing
to abandon principles that have been heretofore deemed the most sacred.
The conduct of the executive in bestowing offices, more in the style of
rewards for the support of particular measures, than from any regard to
the general merits of the citizens called to fill them, and upon the same
ground removing from office every man who ventures to hazard an
opinion in opposition to any of the measures that have been pursued, ne-
cessarily created alarm. He mentioned the removal from office of Mr.
Tenche Coze and Mr. Gardiner, in support of what he had said, and
expressed a fear, that by these means that numerous and influential class
of citizens, who ought to consider themselves as the public servants,
might be made the creatures of executive power ; and if, said Mr. Nicholas,
the day should ever come that the office of President should devolve upon
an ambitious man, public officers might be made the most powerful instru-
ments to promote his views. The influence would operate upon all those
who expect, or want public employment.
Mr. Nicholas then observed, there was another subject, which he felt
the greatest pain at mentioning. Nothing but its importance and con-
nexion with the subject in discussion should induce him to do it. The
judiciary department of every government should be most pure ; there
should not be a suspicion of a previous bias upon the mind of the judge.
Every man who goes into a court ought to consider himself as in a sanc-
tuary. . The utmost ingenuity of man had been exercised to form a judi-
ciary that should be beyond the reach of influence. Was the conduct of
the judiciary what it ought to have been 1 He had always supposed courts
were instituted to dispense justice between man and man, between indi-
viduals and the society ; but he feared that facts might be stated from
which it might be inferred that it was considered by some that there were
other objects, such as the propagating of particular opinions ; that there
was united in the same man, the duties of a missionary and of a judge.
He said this point of his argument was so disagreeable to him, that he
* Extract of a letter from the Secretary of War to an officer of high rank in the militia
of Virginia, who had communicated the wish of several volunteer companies to tender
their services.
"It being deemed important not to accept of companies composed of disaffected
persons, who might from improper motives be desirous to intrude themselves into the
army under pretence of patriotic association, it will be proper certificates from promi-
nent and known characters, setting- forth the principles of the associates, those of the
officers elect, especially ; and that the company have complied with the pre-
requisite condition of the law, be also presented."
DEBATE ON VIRGINIA RESOLUTIONS. 153
would not dwell upon it, but would dismiss it with a declaration that he
felt great pleasure in saying that there were judges to whom he had never
heard extra-judicial interference in political matters attributed. Mr.
Nicholas observed, that thinking of the measures that he had stated as he
did, he could not consent to expunge Ihe clause. Indeed, if he did not
give his full assent to what was stated in that clause, he would have been
willing to confine the efforts of the House to procure the repeal of the alien
and sedition-bills. But considering these as a part of a system that
brought into jeopardy the dearest interests of his country, he thought it
was their duty to represent to' the other states the whole ground of the
public uneasiness. As to the alien and sedition-laws, he had intended at
an earlier part of the debate to have made some observations, but other
gentlemen on the same side with himself, had expressed his opinions better
than he could have done. He would therefore only say that he con-
sidered them as unconstitutional, and that if the principle was once
established that Congress have a right to make such laws, the tenure by
which we hold our liberty would be entirely subverted^. Instead of rights
independent of human control, we must be content to hold by the courtesy
and forbearance of those whom we have heretofore considered as the
servants of the people. Mr. Nicholas said he had been a member of the
convention that adopted the Constitution ; that he had been uniformly a
friend to it ; that he considered himself as now acting in support of it ; that
he knew it was the artifice of those on the other side to endeavour to at-
tach a suspicion of hostility to the government to those who differed with
them in opinion. For his part, he despised such insinuations, as far as
they might be levelled at him. He appealed to his past life, and to his
situation for his justification. Upon what gentlemen's claim to exclusive
patriotism was founded, he was yet to learn. The friends of the resolu-
tions yielded to none in disinterested attachment to their country, to the
Constitution of the United States, to union, and to liberty. The conduct
and the motives of all would be judged of by the people of this country,
to whom they were all known. Mr. Nicholas had full- confidence that the
amendment would be rejected, and the resolutions without further alteration,
would meet the approbation of a great majority of that House.
General LEE said, that he wished to refute the observations of the gen-
tleman last up, in favour of retaining the clause. (He was proceeding to
do so, when he was interrupted By Mr. Nicholas, who observed that the
gentleman had misunderstood him, and then declared in substance what
he had before actually said.)
After such explanation, General Lee proceeded to justify the measures
of the General Government in respect to the removal of persons from
office. As to Mr. Coxe, as far as he could recollect the circumstances of
his conduct, he thought his removal proper. And as to Mr. Gardiner, he
confessed it was a case with which he was quite unacquainted. In respect
to the judiciary being forward in delivering their opinions on public mea-
sures, he would observe that the state judges had done, and still did the
same. He blamed them not for it. For the appointment of men as judges
did not deprive them of their rights as citizens. But nothing of this kind,
154 DEBATE ON VIRGINIA RESOLUTIONS.
he said, would prove the propriety cf the clause proposed to be stricken
out.
General Lee then observed, that he considered the argument of the gen-
tleman from Amelia, in respect to the connexion between the alien-law,
and the law concerning volunteers, weak. For his army of aliens being
soldiers by compulsion, would turn against the President, instead of assist-
ing him. The gentleman, too, had called in question the ends which the
government had in view in raising an army and navy. General Lee pro-
ceeded to answer the objections upon that head, by pointing out those
ends. As to the alien and sedition-laws, he contended that the only real
view in passing them, was to protect us from foreign invasion. He denied
that there was an inclination in the General Government to crush a party.
The construction placed by the gentleman from Amelia, upon the Presi-
dent's answer to the address of the people of Bath was erroneous. Gene-
ral Lee then read part of that answer, and placed a different construction
upon the expressions which it contained. He conceived the President's
meaning only to be, that it depended upon Virginia to say whether or not
there was a party in the United States to be crushed, &c. ; not positively
asserting on his part, that there was such a party.
General Lee then observed, that if the people could govern themselves,
how could that be done but by obedience to the laws ? Their freedom
could not be preserved by any other mode. For if the principle of obey-
ing the will of the majority was once destroyed, it would prostrate all free
government. But the gentleman from Amelia had considered himself as
one of the party to be crushed, alluded to by the President. He (General
Lee) was surprised at such an idea. That gentleman had committed no
crime. He had for some time before, been honoured with a seat in Con-
gress. And there, although he had generally been in a minority, yet it
was nothing more than the situation in which he (General Lee) had often
been placed here. In neither was there any criminality. A difference, it
was true, did exist between these cases ; and he derived consolation from
reflecting, that though he himself was in a minority here, he was still
in a majority with that body which properly had the determination of
national matters. He concluded with hoping that the amendment would
prevail.
Mr. TYLER arose next, and said that an able general would fight and
struggle to the last. When driven from one stronghold, he would retreat
to another; and finding himself no longer able to oppose superior num-
bers, he would attempt to divide his enemy. Mr. Tyler believed the plan
on the present occasion, was to divide the republican members, but he
hoped the gentleman's plan would not succeed ; and that the clause would
be retained. He thought it contained solemn truths. He doubted not but
that many of the measures of the General Government had a tendency
to monarchy, absolute or limited. These measures had been pointed out
by the gentleman from Albemarle. He would however state them over
again. Mr. Tyler did so. He particularly relied on the growing influ-
ence of the executive, and the probability of an alliance with a corrupt
monarchy, and an open rupture with a republic, which he said had been
openly advocated by gentlemen of high character. He inquired what had
DEBATE ON VIRGINIA RESOLUTIONS. 155
been the effects of executive influence in Great Britain ? He said, that
by the revolution of 1688, and by several statutes of Parliament passed
about that time, many of the great rights of the people, and the principles
of freedom had been established ; but that it might, at this time, be well
doubted if the people were more free than they were before the revolu-
tion. This was to be ascribed to the immense influence of the crown,
which had three millions at disposal. He demanded what other cause had
prevented a reform in Parliament, upwards of three hundred of whose
members were chosen by a fewer number of electors. He asked if there
was not some similitude between the systems pursued by our administra-
tion, and that of Great Britain ? He said that the people of Great Britain
were clamorous for peace, and Lord Malmesbury was sent to make peace ;
but he returned, and made no peace. He would not follow the compari-
son. Our fears, he said, had been assailed. He inquired whom were we
to fear? He feared no man, and no measure, but that of offending the
people ; and he believed that the people were never offended at any effort
to maintain their rights, or to protect their liberties. The gentleman from
Westmoreland had said, that the gentleman from Amelia could not con-
sider himself as one of the party to be crushed, and had asked what
crime that gentleman had committed. Mr. Tyler said, that the gentleman
from Amelia had committed a crime ; the crime of differing in opinion
with the administrators of the government. This was the crime that had
incarcerated Mr. Lyon. He asked what prospect have we of a change of
these measures, which he viewed as the harbingers, the forerunners of
monarchy, either limited or absolute. Were we not told that they must
have more men, and a little more money ; augment our standing army,
and increase our navy ; and ' force the construction of the Constitution to
warrant alien and sedition-bills? Mr. Tyler concluded by hoping that the
clause would be retained. He believed it contained the truth, and was
very important ; and thought that the people of Virginia called forborne
such measure.
Mr. John Taylor's resolutions, as amended, agreed to by the Committee,
and reported to the House (ante, p. 149-50), being read the second time,
a motion was made, and the question being put, to amend the same by
expunging from them the fourth clause in the following words :
" That the General Assembly doth also express its deep regret, that a
spirit has in sundry instances been manifested by the Federal .Govern-
ment to enlarge its powers by forced constructions of the constitutional
charter which defines them ; and that indications have appeared of a
design to expound certain general phrases (which having been copied
from the very limited grant of powers in the former articles of confedera-
tion, were the less liable to be misconstrued) so as to destroy the meaning
and effect of the particular enumeration, which necessarily explains and-
limits the general phrases, and so as to consolidate the states, by degrees,
into one sovereignty, the obvious tendency and inevitable result of which
would be to transform the present republican system of the United States
into an absolute, or at best a mixed monarchy."
It passed in the negative, ayes 68 noes 96.
On a motion made by General Lee, seconded by Mr. Boiling, ordered,
156 DEBATE ON VIRGINIA RESOLUTIONS.
that the names of the ayes and noes on the foregoing question be inserted
in the journal.
The names of those who voted in the affirmative,*are Messrs. Bailey,
Ware', Anderson, Porterfield, Poage, White, Otey, Logwood, Tate, Baker,
Breckenridge, M'Guire, Moorman, Spencer, Bedford, Harrison, Herbert,
Magill, Bynum, Reives, John Mathews, Cavendish, Royal, Snyder, King,
Fisher, Simons, Godwin, Young, Richard Corbin, Thomas Lewis, Turner,
Wallace, Pollard, Gregory, Powell, Clapham, Cowan, Evans, Ingles,
James Taylor, Watkins, Upshur, Darby, Claughton, Clarke, Divan, Cure-
ton, George K. Taylor, Brooke, Robinson, Ellegood, M'Coy, Coonrod,
Wilson, Glasscock, Caruthers, Andrew Alexander, Davis, Charles Lewis,
Blow, Booth, Lee, Bradley, Drope, Crockett, Griffin, Andrews 68.
And the names of those who voted in the negative, are Messrs. Cabell,
Nicholas, Walker, Giles, Fletcher, Boiling, William Allen, Colwell, Per-
row, John Taylor, Buckner, Tyler, Cheatham, Thomas A. Taylor, Daniel,
Roberts, Shackelford, Peterson Goodwyn, Pegram, Booker, Daingerfield,
Webb, Jennings, Homer, Haden, Payne, Greer, Benjamin Cooke, Hall,
Pleasants, Heath I. Miller, Jones, M'Kinzie, Starke, Thompson, Jackson,
Prunty, Selden, Price, Martin, Redd, John Allen, Tazewell, Shearman,
Joseph Carter, Callis, Meriwether, Chadwell, Francis Eppes^ Hudgins,
Litchfield, Roebuck, Hill, Nelson, Mark Alexander, Segar, Richard H.
Corbin, Scott, Butt, James S. Mathews, Willis Riddick, Josiah Riddick,
Semple, Hurst, Freeman Eppes, Dupuy, M'Kinley, Barbour, Wright,
Moseley, Woodson, Purnall, Johnston, Pope, Rentfro, William Carter,
Hadden, Barnes, Cockrell, Browning, Gatewood, Dulaney, Mercer, Stan-
nard, Nathaniel Fox, John Fox, Faulcon, Seward, Mason, Gary, Burn-
ham, Hungerford, Meek, Shield, Foushee, Newton 96.
A motion was then made, and the question being put, to amend the said
resolutions, by striking out from the word " Resolved," to the end of the
samej, and inserting in lieu thereof the following words :
" That as it is established by the Constitution of the United States, that
the people thereof have a right to assemble peaceably, and to petition the
government for a redress of grievances, it therefore appears properly to
belong to the people themselves to petition, when they consider their rights
to be invaded by any acts of the general government ; and it should be
left to them, if they conceive the laws lately passed by the Congress of the
United States, commonly called the 'alien and sedition-laws,' to be
unconstitutional, or an invasion of their rights, to petition for a repeal of"
the said laws."
It also passed in the negative, ayes 60 noes 104.
On a motion made by Mr. Brooke, seconded by Mr. Griffin, ordered,
that the names of the ayes and noes on the foregoing question be inserted
in the journal.
* The names of those who voted in the affirmative, are Messrs. Bailey,
Ware, Anderson, Porterfield, Poage, White, Otey, Logwood, Tate, Baker,
Breckenridge, M'Guire, Moorman, Spencer, Herbert, Magill, Bynum,
Reives, J. Mathews, Cavendish, Royall, Snyder, King, Fisher, Simons,
Nelson, Evans, Ingles, Jas. Taylor, Watkins, Upshur, Darby* Clarke,
Divan, Cureton, George K. Taylor, Brooke, Robinson, Ellegood, M'Coy,
DEBATE ON VIRGINIA RESOLUTIONS. 157
Coonrod, Wilson, Davis, Charles Lewis, Blow, Booth, Lee, Bradley,
Drope, Crockett, Griffin, Andrews, Godwin, Thomas Lewis, Turner,
Wallace, Pollard, Powell, Clapham, Cowan 60.
And the names of those who voted in the negative, are Messrs. Cabell,
Nicholas, Walker, Giles, Fletcher, Boiling, William Allen, Colwell, Per-
row, John Taylor, Buckner, Bedford, Harrison, Tyler, Cheatham, Thomas
A. Taylor, Daniel, Roberts, Shackelford, Peterson Goodwyn, Pegram,
Booker, Daingerfield, Webb, Jennings, Homer, Haden, Payne, Greer,
Benjamin Cooke, Hall, Pleasants, Heath I. Miller, Jones, M'Kinzie, Starke,
Thompson, Jackson, Prunty, Selden, Price, Martin, Redd, John Allen,
Tazewell, Young, Richard Corbin, Gregory, Shearman, Joseph Carter,
Callis, Meriwether, Chadwell, Francis Eppes, Hudgins, Litchfield, Roe-
buck, Hill, Marke Alexander, Segar, Richard H. Corbin, Scott, Butt,
James S. Mathews, W. Riddick, J. Riddick, Semple, Hurst, Claughton,
Freeman Eppes, Dupuy, M'Kinley, Barbour, Wright, Moseley, Woodson,
Purnall, Johnston, Pope, Rentfro, William Carter, Hadden, Barnes, Glass-
cock, Caruthers, Andrew Alexander, Cockrell, Browning, Gatewood, Du-
laney, Mercer, Stannard, Nathaniel Fox, John Fox, Faulcon, Seward,
Mason, Gary, Burnham, Hungerford, Meek, Shield, Foushee, Newton
104.
And then the main question being put, that the House do agree with the
committee of the whole House in the resolutions as reported,
It passed in the affirmative, ayes 100 noes 63.
On a motion made by Mr. John Taylor, seconded by Mr. Nicholas,
ordered, that the names of the ayes and noes on the foregoing question be
inserted in the journal.
The names of those who voted in the affirmative, are Messrs. Cabell,
Nicholas, Walker, Giles, Fletcher, Boiling, William Allen, Colwell, Per-
row, John Taylor, Buckner, Harrison, Tyler, Cheatham, Thomas A.
Taylor, Daniel, Roberts, Shackelford, P. Goodwyn, Pegram, Booker,
Daingerfield, Webb, Jennings, Horner, Haden, Payne, Greer, Benjamin
Cooke, Hall, Pleasants, Heath I. Miller, Jones, M'Kinzie, Starke, Thomp-
son*, Jackson, Prunty, Selden, Price, Martin, Redd, John Allen, Tazewell,
Young, Richard Corbin, Gregory, Shearman, Joseph Carter, Callis, Meri-
wether, Chadwell, Francis Eppes, Hudgins, Litchfield, Roebuck, Hill,
Mark Alexander, Segar, Richard H. Corbin, Scott, Butt, James S. Ma-
thews, W. Riddick, J. Riddick, Semple, Hurst, Claughton, Freeman
Eppes, Dupuy, M'Kinley, Barbour, Wright, Moseley, Woodson, Purnall,
Johnston, Pope, Rentfro, William Carter, Hadden, Glasscock, Cbckrell,
Browning, Gatewood, Dulaney, Mercer, Stannard, Nathaniel Fox, John
Fox, Faulcon, Seward, Mason, Gary, Burnham, Hungerford, Meek, Shield,
Foushee, Newton 100.
And the names of those who voted in the negative are Messrs. Bailey,
Ware, Anderson, Porterfield, Poage, White, Otey, Logwood, Tate, Baker,
Breckenridge, M'Guire, Moorman, Spencer, Bedford, Herbert, Magill,
Bynum, Reives, John Matthews, Cavendish, Snyder, King, Fisher, Si-
mons, Godwin, Thomas Lewis, Turner, Wallace, Pollard, William
Clarke, Royall, Powell, Clapham, Cowan, Nelson, Evans, Ingles, James
Taylor, Watkins, Upshur, Darby, Divan, Cure"ton, George K. Taylor,
158 , DEBATE ON VIRGINIA RESOLUTIONS.
Brooke, Robinson, Ellegood, M'Coy, Coonrod, Wilson, Caruthers, Andrew
Alexander, Davis, Charles Lewis, Blow, Booth, Lee, Bradley, Drope,
Crockett, Griffin, and Andrews 63.
The House then ordered that the clerk do carry the said resolutions to
the Senate for their concurrence.
IN SENATE,
Monday, December 24, 1798.
The House, according to the order of the day, resolved itself into a
committee of the whole House, on the resolutions of the House of Dele-
gates, concerning certain acts of the Congress of the United States, passed
at their last session ; and after some time spent therein, Mr. Speaker re-
sumed the chair, and Mr. Preston reported that the committee had, ac-
cording to order, taken the said resolutions under their consideration, and
had gone through the same, and had directed him to report the same with-
out any amendment.
A motion was then made to amend the fifth resolution, by striking out
the words " two late cases of the alien and" and on the question to agree
to the same,
It passed in the negative Ayes 5, Noes 12.
The ayes and noes were required on the above question.
Ayes Burwell Bassett, Francis Peyton, Benjamin Temple, John Hay-
mond, John Eyre 5.
Noes Creed Taylor, Richard Kennon, Thomas Royster, Archibald
Stewart, French Strother, Hugh Holmes, George Carrington, John
Preston, John Hoomes, Thomas Newton, Nicholas Cabell, George Penn
12.
And then the main question being put, that the House do agree to the
said resolutions,
It was resolved in the affirmative. Ayes 14, Noes 3.
Ordered, That the clerk do acquaint the House of Delegates therewith.
On the above question the ayes and noes were required.
Ayes Creed Taylor, Richard Kennon, Burwell Bassett, Thomas Roy-
ster, Archibald Stewart, French Strother, Hugh Holmes, George Carring-
ton, John Preston, John Hoomes, Benjamin Temple, Thomas Newton,'
Nicholas Cabell, George Penn 14.
Noes Francis Peyton, John Raymond, John Eyre 3.
HOUSE OF DELEGATES, 1798-99.
159
The General Assembly, when these resolutions were adopted, consisted
of the following persons : the federalists' names being in italics.
HOUSE OF DELEGATES.
John Wise,
Thomas M. Bailey.
AMHERST.
Wm. H. Cabell,
Wm. Ware.
AUGUSTA.
Andrew Anderson,
Robert Porterfield.
ALBEMARLE.
Wilson C. Nicholas,
Succeeded Jan. 28, 1799, by Wm. Woods,
Francis Walker.
AMELIA.
Alex. Jones,
Succeeded 17th Dec. 1799, by
Joshua Chaffin,
Wm. B. Giles.
George Poage,
John White.
BEDFORD.
Isaac Otey,
Thos. Logwood.
BERKELEY.
Magnus Tate,
John Baker.
BOTETOURT.
James Breckenridge,
John Miller.
BRUNSWICK.
James Fletcher,
Wm. Ruffin.
BUCKINGHAM.
Powhatan Boiling.
Wm. Allen.
Francis M'Guire,
Robert Calwell.
CAMPBELL.
Daniel B. Perrow,
Achilles Moorman.
John Taylor,
George Buckner.
CHARLOTTE.
Gideon Spencer,
Robert Bedford,
CHARLES CITY.
Collier Harrison,
Samuel Tyler.
CHESTERFIELD.
Matthew Cheatham,
Th. Augustus Taylor.
CUMBERLAND.
John Hatcher,
Wm. Daniel, Jr.
CULPEPER.
John Roberts,
John Shackelford, Jr.
DINWIDDIE.
Peterson Goodwin,
John Pegram, Jr.
ELIZABETH CITY.
George Booker,
W. Westwood.
John Daingerfield,
James Webb.
Roger West,
(did not attend.)
John Carlyle Herbert.
FAUQUIER.
Augustine Jennings,
Gustavus B. Homer.
FLUVANNA.
Joseph Haden,
James Payne.
FREDERICK.
Archd. Magill,
Lewis Wolfe.
FRANKLIN.
Moses Greer,
Benj. Cooke.
160
HOUSE OF DELEGATES, 1798-99.
GREENSVILLE.
Turner Bynum.
Nathanl. Reives.
GLOUCESTER.
Mordecai Cooke,
Wm. Hall.
GOOCHLAND.
James Pleasants, Jr.
Heath T. Miller.
GREENBRIAR.
John Mathews,
Wm. H. Cavendish.
GRAYSON.
Minitree Jones,
Greenberry G. M'Kinzie.
HALIFAX.
Wm. Royall,
Richard Howson.
HAMPSHIRE.
John Snyder,
Alex. King.
HANOVER.
Thomas Starke.
John Thompson.
HARRISON.
John G. Jackson,
John Prunty.
HARDY.
Jacob Fisher,
Christian Simons.
Miles Selden,
Wm. Price.
Joseph Martin,
John Redd.
ISLE OF WIGHT.
Josiah Godwin,
Thomas Whitefield,
Succeeded Jan. 2, 1799, by
James Johnston.
JAMES CITY.
John Allen,
Littleton W. Tazewell,
KING AND QUEEN.
Henry Young-,
Richard Corbin,
KANAWHA.
Wm. Morris, Jr.,
Thos. Lewis.
KING GEORGE.
Thos. Turner,
Gustavus B. Wallace.
KING WILLIAM.'
Robt. Pollard,
Wm. Gregory.
LANCASTER.
Martin Shearman,
Joseph Carter.
Burr Powell,
Saml. Clapham.
Wm. O. Callis,
Thomas Meriwether.
LEE.
David Chadwell,
Charles Cooke.
LUNENBURG.
Francis Epes,
Wm. Cowan.
MATTHEWS.
Holden Hudgins,
Zadock Litchfield.
MADISON.
Robert Roebuck,
Henry Hill.
MECKLENBURG.
John Nelson,
Mark Alexander.
MIDDLESEX.
Wm. Segar,
Richard H. Corbin.
MONONGALIA.
John Evans,
David Scott.
MONTGOMERY.
John Ingles,
James Taylor.
NANSEMOND.
Willis Riddick,
Josiah Riddick.
NEW KENT.
James Semple,
John D. Watkins.
NORFOLK.
Josiah Butt,
James S. Matthews.
NORTHAMPTON.
John Upshur,
Nathl. Darby.
HOUSE OF DELEGATES, 1798-99.
161
NORTHUMBERLAND.
Thomas Hurst,
Wm. Claughton.
NOTTOWAY.
Freeman Epes,
James Dupuy.
OHIO.
Archibald Woods,
Wm. M'Kinley.
ORANGE.
James Barbour,
John Wright.
PITTSYLVANIA.
Wm. Clark,
Robt. Devin.
POWHATAN.
William Moseley,
Frederick Woodson.
PRINCE EDWARD.
Peter Johnston,
John Purnall.
PR1NCE.GEORGE.
James Cureton,
Geo. Keith Taylor.
PRINCE WILLIAM.
John Pope,
Edmund Brooke.
PRINCESS-ANNE.
James Robinson,
Wm.Elligood.
PENDLETON.
Wm. M'Coy,
Jacob Conrad.
PATRICK.
Joshua Rentfro,
Wm. Carter.
RANDOLPH.
Wm. Wilson,
John Hadden.
RICHMOND.
Richard Barnes,
George Glasscock.
ROCKBRIDGE.
James Caruthers,
Andrew Alexander.
ROCKINGHAM.
Walter Davis,
Charles Lewis.
Simon Cockrell,
Francis Browning.
SHENANDOAH.
John Gatewood,
Wm. H. Dulaney.
SOUTHAMPTON.
Robert Goodwyn,
Wm. Blow.
SPOTTSYLVANIA.
John Mercer,
Larkin Starmard.
STAFFORD.
Nathaniel Fox,
John Fox.
SURRY.
Nicholas Faulcon,
Canfield Seward.
SUSSEX.
Robert Boothe,
John R. Mason.
WARWICK.
Richard Gary,
John Burnham.
WESTMORELAND.
John P. Hungerford,
Henry Lee.
WASHINGTON.
James Bradley,
Samuel Meek.
Wm. Drope,
Saml. Crockett.
YORK.
Samuel Shield,
Thos. Griffin.
RICHMOND CITY.
Wm. Foushee.
WILLIAMSBURG.
Robert Andrews.
NORFOLK BOROUGH.
Thomas Newton.
SENATE.
The names of the Senators, as far as concerns the subject of the reso-
lutions, appear from the vote already stated.
III.
RESOLUTIONS OF KENTUCKY LEGISLATURE.
IN THE HOUSE OF REPRESENTATIVES,
November 10th, 1798. .
THE House, according to the standing order of the day, resolved itself
into a committee of the whole on the state of the commonwealth, Mr.
Caldwell in the chair ; and after some time spent therein, the Speaker re-
sumed the chair, and Mr. Caldwell reported that the committee had, ac-
cording to order, had under consideration the Governor's address, and
had come to the following resolutions thereupon, which he delivered in at
the clerk's table, where they were twice read and agreed to by the House.
1. Resolved, That the several states composing the United States of
America, are not united on the principle of unlimited submission to their
general government ; but that by compact, under the style and title of a
Constitution for the United States, and of amendments thereto, they con-
stituted a general government for special purposes, delegated to that
government certain definite powers, reserving, each state to itsjelf, the
residuary mass of right to their own seTT-government ; and that whenso-
ever the general government assumes undelegated powers, its acts are
unauthoritative, void, and of no force : That to this compact ejich state
acceded as a state, and is an integral party, its co-states forming as to
itself, the other party : That the government created .by this compact was
not made the exclusive or final judge of the extent of the powers delegated
to itself; since that would have made its discretion, and not the Constitu-
tion, the measure of its powers ; but that, as in all other cases of compact
, among parties having no common judge, each party has an equal right to
judge for itself, 'as well of infractions, as of the mode and measure of re-
dress.
2. Resolved, That the Constitution of the United States having dele-
gated to Congress a power to punish treason, counterfeiting the securities
and current coin of the United States, piracies and felonies committed on
the high seas, and offences against the laws of nations, and no other
crimes whatever, and it being true as a general principle, and one of the
KENTUCKY RESOLUTIONS. 163
amendments to the Constitution having also declared, " that the powers
not delegated to the United States by the Constitution, nor prohibited by
it to the states, are reserved to the states respectively, or to the people ;"
therefore, also, the same act of Congress, passed on the 14th day of July,
1798, and entitled, "an act in addition to the act entitled, an act for the
punishment of certain crimes against the United States ;" as also the act
passed by them on the 27th day of June, 1798, entitled, " an act to punish
frauds committed on the Bank of the United States," (and all other their
acts which assume to create, define, or punish crimes other than those
enumerated in the Constitution,) are altogether void, and of no force, and
that the power to create, define, and punish such other crimes is reserved,
and of right appertains, solely and exclusively, to the respective states, each
within its own territory.
3. Resolved, That it is true as a general principle, and is also expressly
declared by one of the amendments to the Constitution, that " the powers
not delegated to the United States by the Constitution, nor prohibited by
it to the states, are reserved to the states respectively, or to the people ;"
and that no power over the freedom of religion, freedom of speech, or
freedom of the press, being delegated to the United States by the Consti-
tution, nor prohibited by it to the states, all lawful powers respecting the
same did of right remain, and were reserved to the states, or to the peo-
ple ; that thus was manifested their determination to retain to themselves
the right of judging how far the licentiousness of speech and of the press
may be abridged without lessening their useful freedom, and how far those
abuses which cannot be separated from their use, should be tolerated
rather than the use be destroyed ; and thus also they guarded against all
abridgment by the United States of the freedom of religious opinions and
exercises, and retained to themselves the right of protecting the same, as
this state by a law passed on the general demand of its citizens, had
already protected them from all human restraint or interference : and that
in addition to this general principle and express declaration, another and
more special provision has been made by one of the amendments to the
Constitution, which expressly declares, that " Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof, or abridging the freedom of speech, or of the press," thereby
guarding in the same sentence, and under the same words, the freedom of
religion, of speech, and of the press, insomuch, that whatever violates
either, throws down the sanctuary which covers the others, and that libels,
falsehoods, and defamations, equally with heresy and false religion, are
withheld from the cognizance of federal tribunals : that therefore the act
of the Congress of the United States, passed on the 14th day of July,
1798, entitled, "an act in addition to the act for the punishment of cer-
tain crimes against the United States," which does abridge the freedom of
the press, is not law, but is altogether void and of no effect.
4. Resolved, That alien-friends are under the jurisdiction and protec-
tion of the laws of the state wherein they are ; that no power over them
has been delegated to the United States, nor prohibited to the individual
states distinct from their power over citizens; and it being true-as a gene-
ral principle, and one of the amendments to the Constitution having also
164 KENTUCKY RESOLUTIONS.
declared, that " the powers not delegated to the United States by the Con-
stitution, nor prohibited by it to the states, are reserved to the states respec-
tively, or to the people," the act of the Congress of the United States,
passed on the 22d day of June, 1798, entitled " an act concerning aliens,"
which assumes power over alien-friends not delegated by the Constitution,
is not law, but is altogether void and of no force.
5. Resolved, That in addition to the general principle as well as the
express declaration, that powers not delegated are reserved, another and
more special provision inserted in the Constitution, from abundant caution,
has declared, " that the migration or importation of such persons as any
of the states now existing shall think proper to admit, shall not be pro-
hibited by the Congress prior to the year 1808 :" that this commonwealth
does admit the migration of alien-friends described as the subject of the
said act concerning aliens ; that a provision against prohibiting their
migration, is a provision against all acts equivalent thereto, or it would be
nugatory ; that to remove them when migrated, is equivalent to a prohi-
bition of their migration, and is therefore contrary to the said provision of
the Constitution, and void.
6. Resolved, That the imprisonment of a person under the protection
of the laws of this commonwealth, on his failure to obey the simple order
of the President, to depart out of the United States, as is undertaken by
the said act, entitled " an act concerning aliens," is contrary to the Con-
stitution, one amendment to which has provided, that " no person shall be
deprived of liberty without due process of law," and that another having
provided, " that in all criminal prosecutions, the accused shall enjoy the
right to a public trial by an impartial jury, to be informed of the nature
and cause of the accusation, to be confronted with the witnesses against
him, to have compulsory process for obtaining witnesses in his favour, and
to have the assistance of counsel for his defence," the same act under-
taking to authorize the President to remove a person out of the United
States, who is under the protection of the law, on his own suspicion, with-
out accusation, without jury, without public trial, without confrontation of
the witnesses against him, without having witnesses in his favour, with-
out defence, without counsel, is contrary to these provisions, also, of the
Constitution, is therefore not law, but utterly void and of no force.
That transferring the power of judging any person who is under the
protection of the laws, from the courts to the President of the United
States, as is undertaken by the same act, concerning aliens, is against the
article of the Constitution which provides, that " the judicial power of the
United States shall be vested in courts, the judges of which shall hold their
offices during good behaviour," and that the said act is void for that rea- -
son also ; and it is further to be noted, that this transfer of judiciary
power is to that magistrate of the General Government, who already pos-
sesses all the executive, and a qualified negative in all the legislative
powers.
7. Resolved^ That the construction applied by the General Government,
(as is evinced by sundry of their proceedings,) to those parts of the Con-
stitution of the United States which delegates to Congress a power to lay
and collect taxes, duties, imposts, and excises ; to pay the debts, and pro-
KENTUCKY RESOLUTIONS. 165
vide for the common defence and general welfare of the United States, and
to make all laws which shall be necessary and proper for carrying into
execution the powers vested by the Constitution in the Government of the
United States, or any department thereof, goes to the destruction- of all the
limits prescribed to their power by the Constitution : that words meant by
that instrument to be subsidiary only to the execution of the limited powers,
ought not to be so construed as themselves to give unlimited powers, nor
a part so to be taken, as to destroy the whole residue of the instrument :
that the proceedings of the General Government under colour of these
articles, will, be a fit and necessary subject for revisal and correction at
a time of greater tranquillity, while those specified in the preceding reso-
lutions call for immediate redress.
8, Resolved, That the preceding resolutions be transmitted to the sena-
tors and representatives in Congress from this commonwealth, who are
hereby enjoined to present the same to their respective houses, and to use
their best endeavours to procure, at the next session of Congress, a repeal
of the aforesaid unconstitutional and obnoxious acts.
9. Resolved, lastly, That the Governor of this commonwealth be, and
is hereby authorized and requested to communicate the preceding resolu-
tions to the legislatures of the several states, to assure them that this com-
monwealth considers union for specified national purposes, and particularly
for those specified in their late federal compact, to be friendly to the
peace, happiness, and prosperity of all the states : that, faithful to that com-
pact, according to the plain intent and meaning in which it was understood
and acceded to by the several parties, it is sincerely anxious for its pre-
servation : that it does also believe, that to take from the states all the
powers of self-government, and transfer them to a general and consolidated
government, without regard to the special obligations and reservations
solemnly agreed to in that compact, is not for the peace, happiness or
prosperity of these states : and that therefore, this commonwealth is""
determined, as it doubts not its co-states are, tamely to submit to undele- j
gated and consequently unlimited powers in no man or body of men on/
earth : that if the acts before specified should stand, these conclusions
would flow from them ; that the general government may place any act
they think proper on the list of crimes, and punish it themselves, whether
enumerated or not enumerated by the Constitution, as cognizable by them ;
that they may transfer its congnizance to the President or any other per-
son, who may himself be the accuser, counsel, judge and jury, whose
suspicions may be the evidence, his order the sentence, his officer the
executioner, and his breast the sole record of the transaction ; that a very
numerous and valuable description of the inhabitants of these states being,
by this precedent, reduced as outlaws to the absolute dominion of one man,
and the barrier of the Constitution thus swept away from us all, no ram-
part now remains against the passions and the power of a majority of
Congress, to protect from a like exportation or other more grievous punish-
ment the minority of the same body, the legislatures, judges, governors,
and counsellors of the states, nor their other peaceable inhabitants who
may venture to reclaim the constitutional rights and liberties of the states
and people, or who, for other causes, good or bad, may be obnoxious to
166 KENTUCKY RESOLUTIONS.
the views, or marked by the suspicions of the President, or be thought
dangerous to his or their elections, or other interests public or personal :
that the friendless alien has indeed been selected as the safest subject of a
first experiment; but the citizen will soon follow, or rather has already
followed; for, already has a sedition-act marked him as its prey: that
these and successive acts of the same character, unless arrested on the
threshold, may tend to drive these states into revolution and blood, and
will furnish new calumnies against republican governments, and new pre- '
texts for those' who wish it to be believed, that man cannot be governed
but by a rod of iron: that it would be a dangerous delusion, were a con-
fidence in the men of our choice, to silence our fears for the safety of our
rights: that confidence is every where the parent of despotism ; free govern- X
ment is founded in jealousy, and not in confidence ;*it is jealousy and not
confidence which prescribes limited constitutions to bind down those whom
we are obliged to trust with power: that our Constitution has accordingly
fixed the limits to which and no further our confidence may go; and let
the honest advocate of confidence read the alien and sedition-acts, and
say if the Constitution has not been wise in fixing limits to the govern-
ment it created, and whether we should be wise in destroying those limits'?
Let him say what the government is if it be not a tyranny, which the men
of our choice have conferred on the President, and the President of our
choice has assented to and accepted, over the friendly strangers, to whom
the mild spirit of our country and its laws had pledged hospitality and
protection: that the men of our choice have more respected the bare
suspicions of the President, than the solid rights of innocence, the claims
of justification, the sacred force of truth, and the forms and substance of
law and justice In questions of power, then, let no more be heard of
confidence in man, but bind him down from mischief, by the chains of the
Constitution. That this commonwealth does, therefore, call on its co-states
for an expression of their sentiments on the acts concerning aliens, and
for the punishment of certain crimes herein before specified, plainly
declaring whether these acts are or are not authorized by the Federal
compact. And it doubts not that their sense will be so announced, as to
prove their attachment unaltered to limited government, whether general
or particular, and that the rights and liberties of their co-states, will be
exposed to no dangers by remaining embarked on a common bottom with
their own : That they will concur with this commonwealth in considering
the said acts as so palpably against the Constitution, as to amount to an
undisguised declaration, that the compact is not meant to be the measure
of the powers of the general government, but that it will proceed in the
exercise over these states of all powers whatsoever : That they will view
this as seizing the rights of the states, and consolidating them in the hands
of the general government with a power assumed to bind the states, (not
merely in cases made federal,) but in all cases whatsoever, by laws made,
not with their consent, but by others against their consent : That this
would be to surrender the form of government we have chosen, and to
live under one deriving its powers from its own will, and not from our
authority; and that the co-states, recurring to their natural right in cases
KENTUCKY RESOLUTIONS. 167
not made federal, will concur in declaring these acts void and of no force,
and will each unite with this commonwealth, in requesting their repeal at
the next session of Congress.
EDMUND BULLOCK, H. R.
JOHN CAMPBELL, S. S. P. T.
Passed the House of Representatives, Nov. 10th, 1798.
Attest,
THOMAS TODD, C. H. R.
In Senate, November 13th, 1798, unanimously concurred in.
Attest,
B. THRUSTON, Clk. Sen.
Approved November 16th, 1798.
JAMES GARRARD, G. K.
By the Governor.
HARRY TOULMIN,
Secretary of State.
IV.
COUNTER.RESOLUTIONS OF OTHER STATES
IN RESPONSE TO THOSE OF VIRGINIA, &c.
STATE OF DELAWARE.
IN THE HOUSE OF REPRESENTATIVES,
February 1, 1799.
. Resolved, By the Senate and House of Representatives of the state of
Delaware, in General Assembly met, That they consider the resolutions
from the state of Virginia, as a very unjustifiable interference with the
general government and constituted authorities of the United States, and
of dangerous tendency, and therefore not a fit subject for the further con-
sideration of the General Assembly.
ISAAC DAVIS,
Speaker of Senate.
STEPHEN LEWIS,
Speaker of House of Representatives.
Test,
JOHN FISHER,
Clerk of Senate.
JOHN CALDWELL,
Clerk of House of Representatives.
Resolved, That the above resolutions be signed by the Speaker of the
Senate, and by the Speaker of the House of Representatives ; and that the
Governor of this state be requested to forward the same to the Governor
of the state of Virginia.
JOHN FISHER,
Clerk of Senate.
JOHN CALDWELL,
Clerk of House of Representatives.
COUNTER-RESOLUTIONS. RHODE ISLAND. 169
STATE OF RHODE ISLAND AND PROVIDENCE
PLANTATIONS.
IN GENERAL ASSEMBLY,
February, A. D. 1799.
Certain resolutions of the legislature of Virginia, passed on the
twenty-first day of December last, being communicated to this Assembly,
1. Resolved, That in the opinion of this legislature, the second section
of the third article of the Constitution of the United States, in these words,
to wit : The judicial power shall extend to all cases arising under the
laws of tlie United States, vests in the federal courts exclusively, and in
the Supreme Court of the United States ultimately, the authority of deci-
ding on the constitutionality of any act or law of the Congress of the
United States.
2. Resolved^ That for any state legislature to assume that authority
would be,
1st. Blending together legislative and judicial powers.
2d. Hazarding an interruption of the peace of the states by civil dis-
cord, in case of a diversity of opinions among the state legislatures ; each
state having, in that case, no resort for vindicating its own opinion, but to
the strength of its own arm.
3d. Submitting most important questions of law, to less competent tri-
bunals ; and
4th. An infraction of the Constitution of the United States, expressed in
plain terms.
3. Resolved^ That although, for the above reasons, this legislature, in
their public capacity, do not feel themselves authorized to consider and
decide on the constitutionality of the sedition and alien-laws (so called),
yet they are called upon by the exigency of this occasion, to declare, that
in their private opinions, these laws are within the powers delegated to
Congress, and promotive of the welfare of the United States.
4. Resolved^ That the Governor communicate these resolutions to the
supreme executive of the state of Virginia, and, at the same time, express
to him, that this legislature cannot contemplate, without extreme concern
and regret, the many evil and fatal consequences which may flow from
the very unwarrantable resolutions aforesaid of the legislature of Virginia,
passed on the twenty-first day of December last.
A true copy,
SAMUEL Eooy,
Secretary.
170 COUNTER-RESOLUTIONS. MASSACHUSETTS.
COMMONWEALTH OF MASSACHUSETTS.
IN SENATE,
February 9, 1799.
The Legislature of Massachusetts, having taken into serious considera-
the resolutions of the state of Virginia, passed the 21st day of December
last, and communicated by his excellency the Governor, relative to certain
supposed infractions of the Constitution of thd United States, by the go-
vernment thereof, and being convinced that the Federal Constitution is
calculated to promote the happiness, prosperity and safety of the people of
these United States, and to maintain that union of the several states, so
essential to the welfare of the whole ; and, being bound by solemn oath
to support and defend that Constitution, feel it unnecessary ,to make any
professions of their attachment to it, or of their firm determination to sup-
port it against every aggression, foreign or domestic.
But they deem it their duty solemnly to declare, that while they hold
sacred the principle, that the consent of the people is the only pure source
of just and legitimate power, they cannot admit the right of the state legis-
latures to denounce the administration of that government to which the
people themselves, by a solemn compact, have exclusively committed their
national concerns: That, although a liberal and enlightened vigilance
among the people is always to be cherished, yet an unreasonable jealousy
of the men of their choice, and a recurrence to measures of extremity,
upon groundless or trivial pretexts, have a strong tendency to destroy all
rational liberty at home, and to deprive the United States of the most
essential advantages in their relations abroad : That this Legislature are
persuaded, that the decision of all cases in law and equity, arising under
the Constitution of the United States, and the construction of all laws
made in pursuance thereof, are exclusively vested by the people in the
judicial courts of the United States.
That the people in that solemn compact, which is declared to be the
supreme law of the land, have not constituted the state legislatures the
judges of the acts or measures of the Federal Government, but have con-
fided to them the power of proposing such amendments of the Constitution,
as shall appear to them necessary to the interests, or conformable to the
wishes of the people whom they represent.
That by this construction of the Constitution, an amicable and dispas-
sionate remedy is pointed out for any evil which experience may prove to
exist, and the peace and prosperity of the United States may be preserved
without interruption.
But, should the respectable state of Virginia persist in the assumption of
the right to declare the acts of the national government unconstitutional,
and should she oppose successfully her force and will to those of the
nation, the Constitution would be reduced to a mere cypher, to the form
and pageantry of authority, without the energy of power. Every act of
COUNTER-RESOLUTIONS, MASSACHUSETTS. 17 1
the Federal Government which thwarted the views, or checked the ambi-
tious projects of a particular state, or of its leading and influential mem-
bers, would be the object of opposition and of remonstrance; while the
people, convulsed and confused by the conflict between two hostile juris-
dictions, enjoying the protection of neither, would be wearied into a sub-
mission to some bold leader, who would establish himself on the ruins of
both.
The Legislature of Massachusetts, although they do not themselves
claim the right, nor admit the authority, of any of the state governments
to decide upon the constitutionality of the acts of the^Federal Govern- '
ment, still, lest their silence should be construed into disapprobation, or
at best into a doubt of the constitutionality of the acts referred to by the
state of Virginia ; and, as the General Assembly of Virginia has called
for an expression of their sentiments, do explicitly declare, that they con-
sider the acts of Congress, commonly called " the alien and sedition-acts,"
not only constitutional, but expedient and necessary : That the former act
respects a description of persons whose rights were not particularly con-
templated in the Constitution of the United States, who are entitled only
to a temporary protection, while they yield a temporary allegiance : a pro-
tection, which ought to be withdrawn whenever they become " dangerous
to the public safety," or are found guilty of "treasonable machinations"
against the government : That Congress having been especially entrusted
by the people with the general defence of the nation, had not only the
right but were bound to protect it against internal, as well as external
foes.
That the United States, at the time of passing the act concerning aliens,
were threatened with actual invasion, had been driven by the unjust and
ambitious conduct of the French government into warlike preparations,
expensive and burdensome, and had then, within the bosom of the country,
thousands of aliens, who, we doubt not, were ready to co-operate in any
external attack.
It cannot be seriously believed, that the United States should have
waited till the poniard had in fact been plunged. The removal of aliens
is the usual preliminary of hostility, and is justified by the invariable
usages of nations. Actual hostility had unhappily long been experienced,
and a formal declaration of it the government had reason daily to expect.
The law, therefore, was just and Salutary, and no officer could, with so
much propriety be entrusted with the execution of it, as the one in whom
the Constitution has reposed the executive power of the United States.
The sedition-act, so called, is, in the opinion of this Legislature, equally
defensible. The General Assembly of Virginia, in their resolve under
consideration, observe, that when that state, by its convention, ratified the
Federal Constitution, it expressly declared, " That, among other essential
rights, the liberty of conscience and of the press cannot be cancelled,
abridged, restrained or modified by any authority of the United States,"
and from its extreme anxiety to guard these rights from every possible
attack of sophistry or ambition, with other states, recommended an amend-
ment for that purpose; which amendment was, in due time, annexed to
the Constitution ; but they did not surely expect that the proceedings of
COUNTER-RESOLUTIONS. MASSACHUSETTS. 173
The President of the United States is bound by his oath " to preserve,
protect, and defend the Constitution," and it is expressly made his duty
"to take care that the laws be faithfully executed ;" but this would be
impracticable by any created being, if there could be no legal restraint of
those scandalous misrepresentations of his measures and motives, which
directly tend to rob him of the public confidence. And equally impo-
tent would be every other public officer, if thus left to the mercy of the
seditious.
It is holden to be a truth most clear, that the important trusts before
enumerated, cannot be discharged by the government to which they are
committed, without the power. to restrain or punish seditious practices and
unlawful combinations against itself, and to protect the officers thereof
from abusive misrepresentations. HacL the Constitution withheld this
power, it would have made the government responsible for the effects,
without any control over the causes which naturally produce them, and
would have essentially failed of answering the great ends for which the
people of the United States declare, in the first clause of that instrument,
that they establish the same, viz : " To form a more perfect union, esta-
blish justice, insure domestic tranquillity, provide for the common defence,
promote the general welfare, and secure the blessings of liberty to our-
selves and posterity."
Seditious practices and unlawful combinations against the federal govern-
ment, or any officer thereof, in the performance of his duly, as well as
licentiousness of speech and of the press, were punishable on the prin-
ciples of common law in the courts of the United States, before the act in
question was passed. This act, then, is an amelioration of that law in
favour of the party accused, as it mitigates the punishment which that
authorizes, and admits of any investigation of public men and measures
which is regulated by truth. It is not intended to protect men in office,
only as they are agents of the people. Its object is to afford legal security
to public offices and trusts created for the safety and happiness of the
people, and therefore the security derived from it is for the benefit of the
people, and is their right.
This construction of the Constitution, and of the existing law of the
land, as well as the act complained of, the legislature of Massachusetts
most deliberately and firmly believe, results from a just and full view of
the several parts of that Constitution ; and they consider that act to be
wise and necessary, as an audacious and unprincipled spirit of falsehood
and abuse had been too long unremittingly exerted for the purpose of per-
verting public opinion, and threatened to undermine and destroy the whole
fabric of the government.
The legislature further declare, that in the foregoing sentiments they
have expressed the general opinion of their constituents, who have not
only acquiesced without complaint in those particular measures of the
federal government, but have given their explicit approbation by re-elect-
ing those men who voted for the adoption of them : nor is it apprehended,
that the citizens of this state will be accused of supineness, or of an indif-
ference to their constitutional rights ; for, while on the one hand, they
regard with due vigilance, the conduct of the government : on the other,
174 COUNTER-RESOLUTIONS. NEW YORK.
their freedom, safety, and happiness require, that they should defend that
government and its constitutional measures against the open or insidious
attacks of any foe, whether foreign or domestic.
And lastly, that the Legislature of Massachusetts feel a strong convic-
tion, that the several United States are connected by a common interest,
which ought to render their union indissoluble, and that this state will
always co-operate with its confederate states, in rendering that union pro-
ductive of mutual security, freedom arrd happiness.
Sent down for concurrence.
SAMUEL PHILIPS, President.
In the House of Representatives, Feb. 13, 1799. Read and concurred.
EDWARD ROBBINS, Speaker.
A true copy.
Attest, JOHN AVERY, Secretary.
STATE OF NEW YORK.
IN SENATE,
March 5, 1799.
Whereas the people of the United States have established for them-
selves a free and independent national government. And whereas it is
essential to the existence of every government, that it have authority to
defend and preserve its constitutional powers inviolate, inasmuch as
every infringement thereof tends to its subversion. And whereas the
judicial power extends expressly to all cases of law and equity arising
under the Constitution and the laws of the United States, whereby the
interference of the legislatures of the particular states in those cases, is
manifestly excluded. And whereas our peace, prosperity, and happiness
eminently depend en the preservation of the Union, in order to which, a
reasonable confidence in the constituted authorities and chosen representa-
tives of the people is indispensable. And wherea-s every measure calcu-
lated to weaken that confidence, has a tendency to destroy the usefulness
of our public functionaries, and to excite jealousies equally hostile to
rational liberty and the principles of a good republican government. And
whereas the Senate, not perceiving that the rights of the particular states
have been violated, nor any unconstitutional powers assumed by the gene-
ral government, cannot forbear to express the anxiety and regret with
which they observe the inflammatory and pernicious sentiments and doc-
trines which are contained in the resolutions of the legislatures of Virginia
and Kentucky ; sentiments and doctrines no less repugnant to the Constitu-
tion of the United States, and the principles of their union, than destructive
to the Federal Government, and unjust to those whom the people have
elected to administer it : wherefore,
COUNTER-RESOLUTIONS. CONNECTICUT. 175
Resolved, That while the Senate feel themselves constrained to bear
unequivocal testimony against such sentiments and doctrines, they deem
it a duty no less indispensable, explicitly to declare their incompetency, as
a branch of the legislature of this state, to supervise the acts of the general
government.
Resolved, That his excellency the Governor be, and he is hereby
requested to transmit a copy of the foregoing resolution to the executives
of the states 'of Virginia and Kentucky, to the end that the same may be
communicated to the legislatures thereof. .
A true copy, ABM. B. BAUCKER, Clerk.
STATE OF CONNECTICUT.
At a general assembly of the state of Connecticut, holden at Hartford,
in the said state, on the second Thursday of May, Anno Domini, 1799,
his excellency the Governor having communicated to'this Assembly sundry
resolutions of the legislature of Virginia, adopted in December 1798,
which relate to the measures of the general government, and the said
resolutions having been considered, it is
Resolved, That this Assembly views with deep regret, and explicitly
disavows, the principles contained in the aforesaid resolutions ; and par-
ticularly the opposition to the " alien and sedition-acts," acts, which the
Constitution authorized ; which the exigency of the country rendered
necessary ; which the constituted authorities have enacted, and which
merit the entire approbation of this Assembly. They therefore decidedly
refuse to concur with the legislature of Virginia, in promoting any of the
objects attempted in the aforesaid resolutions.
And it is further Resolved, that his excellency the Governor be requested
to transmit a copy of the foregoing resolution to the Governor of Virginia,
that it may be communicated to the legislature of that state.
Passed in the House of Representatives unanimously.
Attest,
JOHN C. SMITH, Clerk.
Concurred unanimously, in the upper House.
Teste,
SAMUEL WYLLYS, Secretary.
176 COUNTER-RESOLUTIONS. NEW HAMPSHIRE.
STATE OF NEW HAMPSHIRE.
IN THE HOUSE OF REPRESENTATIVES,
June 14, 1799.
The committee to take into consideration the resolutions of the General
Assembly of Virginia, dated December 21st, 1798 ; also certain resolu-
tions of the Legislature of Kentucky, of the 10th Novem'ber, 1798, report
as follows :
The Legislature of New Hampshire having taken into consideration
certain resolutions of the General Assembly of Virginia, dated December
21, 1798 ; also certain resolutions of the Legislature of Kentucky, of the
10th of November, 1798:
Resolved, That the Legislature of New Hampshire unequivocally ex-
press a firm resolution to maintain and defend the Constitution of the
United States, and the Constitution of this state, against every aggression,
either foreign or domestic, and that they will support the government of
the United States in all measures warranted by the former.
That the state legislatures are not the proper tribunals to determine
the constitutionality of the laws of the general government, that the
duty of such decision is properly and exclusively confided to the judicial
department.
That if the Legislature of New Hampshire, for mere speculative pur-
poses, were to express an opinion on the acts of the general government,
commonly called " the alien and sedition-bills," that opinion would unre-
servedly be, that those acts are constitutional, and in the present critical
situation of our country, highly expedient.
That the constitutionality and expediency of the acts aforesaid, have
been very ably advocated and clearly demonstrated by many citizens of
the United States, more especially by the minority of the General As-
sembly of Virginia. The Legislature of New Hampshire, therefore, deem
it unnecessary, by any train of arguments, to attempt further illustration
of the propositions, the truth of which, it is confidently believed, at this
day, is very generally seen and acknowledged.
Which report being read and considered, was unanimously received and
accepted, one hundred and thirty-seven members being present.
Sent up for concurrence.
JOHN PRENTICE, Speaker.
In Senate, the same day, read and concurred unanimously.
AMOS SHEPARD, President.
Approved, June 15th, 1799.
J. T. GILMAN, Governor.
A true^opy.
Attest,
JOSEPH PEARSON, Secretary.
COUNTER-RESOLUTIONS. VERMONT. 177
STATE OF VERMONT.
IN THE HOUSE OF REPRESENTATIVES,
October 30th, A. D. 1799.
THE House proceeded to take under their consideration, the resolutions
of the General Assembly of Virginia, relative to certain measures of the
general government, transmitted to the Legislature of this state, for their
consideration : Whereupon,
Resolved, That the General Assembly of the state of Vermont do highly
disapprove of the resolutions of the General Assembly of Virginia, as
being unconstitutional in their nature, and dangerous in their tendency.
It belongs not to state legislatures to decide on the constitutionality of laws
made by the general government ; this power being exclusively vested in
the judiciary courts of the Union : That his excellency the Governor be
requested to transmit a Copy of this resolution to the executive of Virginia,
to be communicated to the General Assembly of that state : And that the
same be sent to the Governor and Council for their concurrence.
SAMUEL C. CRAFTS, Clerk.
In Council, October 30, 1799.
Read and concurred unanimously.
RICHARD WHITNEY, Secretary.
12
y.
VIRGINIA REPORT OF 1799,
AND ANALYSIS THEREOF.
ANALYSIS OF REPORT.
WAIVING objections to the spirit and manner of the counter-resolutions
of other states, the Report proceeds to discuss the resolutions of 21st
December, 1798, seriatim.
1st Resolution. To maintain and defend the Constitution of the United
States, &c.
Not liable to objection.
2d Resolution. To oppose every infraction of the Constitution, &c.
Not liable to objection.
3d Resolution. That the powers of the Federal Government result from
the compact, to which the states are parties: That those powers
are limited by the plain sense and intention of the instrument of com-
pact : And that it is the duty of the states to interpose to arrest the
deliberate, palpable, and dangerous exercise of powers not granted ;
wherein consider,
I. The truth of the several propositions affirmed : viz., that,
1. The powers of the Federal Government result from the compact,
or Constitution ; wherein of,
1. The contemporary discussions when the Constitution was sub-
mitted to the people of the states for their ratification.
2. The 12th amendment to the Constitution.
2. The states are parties to the compact, or Constitution : wherein of,
1. The different senses of the word states, and the meaning as
here used.
2. The sense in which the Constitution was submitted to, and
ratified by the states.
ANALYSIS OF REPORT. 179
3. The powers are limited by the plain sense and intention of the
instrument of compact ; wherein consider that,
1. The powers granted are valid only because granted.
2. The powers not granted, are not valid.
4. The states, as sovereign parties to the compact, must construe it in
the last resort, and decide if it be violated ; wherein consider that,
1. There can be no tribunal superior to the states, in the last resort,
they being sovereign.
2. The federal judiciary cannot be the final expositor of the Consti-
tution, except in relation to the other departments of the govern-
ment ; because,
1. Some usurpations, by the forms of the Constitution, cannot be
drawn within its control.
2. The decisions of the other departments, in cases not subject to
judicial cognizance, would be equally authoritative and final.
3. The usurpations sanctioned, or committed, by the judiciary
would be irremediable.
5. The cases for interposition by the states ; only where the violation,
by the United States, is
1. Deliberate.
2. Palpable.
3. Dangerous.
6. The object of the interposition :
To arrest the progress of usurpation, and maintain the authorities,
rights, and liberties appertaining to the states.
II. The expediency of declaring the truths aforesaid; wherein of
1. The general importance of recurrence to fundamental principles.
2. The particular importance in view of the political doctrines of the
day.
\ih Resolution. That a spirit has been manifested to enlarge the powers
of the Federal Government, by forced constructions, especially of
certain general phrases ; of which the effect will be to consolidate the
states into one sovereignty, and the result a monarchy ; wherein of
the affirmation
I. That a spirit has been manifested by the Federal Government to
enlarge its powers by forced constructions of the Constitution ; whereof
the instances are (amongst others),
1. The Bank-law of 1791.
2. The Carriage-tax law of 1794.
3. The Alien and Sedition laws.
II. That indications have appeared of a design to expound certain gene-
ral phrases, [which although substantially contained in the former
Articles of Confederation, were never therein so misconstrued,] so as
to destroy the effect of the particular enumeration which explains
and limits those phrases ; wherein of
1. What general phrases are referred to,
Those which relate to a provision " for the common defence and
general welfare," &c. Articles of Confederation, Art. VIII.
180 ANALYSIS OF REPORT.
2. The meaning attached to them, in the Articles of Confederation.
III. Instances of a design so to expound those phrases as to destroy
the effect of the particular enumeration of powers ; wherein consider,
1. What the instances are,
1. Debates in Congress.
2. Hamilton's Report on Manufactures, 5th December, 1791,
wherein he supposes everything in the power of Congress, which
concerns the general welfare, and involves the application of
money.
3. Report of Committee of House of Representatives on Agricul-
ture, January, 1797 ; proposing an Agricultural Society under
the direction of the Federal Government.
2. The result of such exposition to destroy the effect of the particular
enumeration of powers ; for,
1. No power of importance, but may involve the application of
money. 4
2. It is no limitation of the power to confine it to cases affecting
the general welfare, because all cases may be said to do so.
3. The proper construction of the phrases
To limit the Federal Government to those modes of promoting
the general welfare which are afterwards specified.
3. The tendency of such exposition of the general phrases in ques-
tion to consolidate the states into one sovereignty.
4. The result of such consolidation, a monarchy ; by,
1. Enlarging the Executive power as a supplement to the deficiency
of laws, which would be greater as the objects of legislative
attention were multiplied.
2. Increasing the offices, honours, and emoluments depending on
the Executive will, and thereby enabling the chief magistrate to
secure his own re-election from time to time, and to regulate the
succession.
3. Rendering the Executive office such an object of ambition as to
make elections so tumultuous and corrupt, that the people would
themselves demand an hereditary succession.
5th Resolution. Protests particularly, against the Alien and Sedition-Acts,
as palpable and alarming infractions of the Constitution, &c. ;
wherein consider,
I. THE ALIEN ACT : Of which it is said that,
1. It exercises a power not delegated by the Constitution; wherein of
1. Some preliminary observations.
1 The Federal Government possesses only delegated powers; and
those not delegated to it are reserved to the states respectively,
or to the people. Hence any power exercised, must appear to
be granted by the Constitution.
. 2. Distinguish between alien enemies, over whom the Federal
authority, as incident to the power of making war, is complete;
and alien friends, to whom it is denied that its power extends.
. 3. Even if the "Alien-Act" contemplated preventive, only, and
ANALYSIS OP REPORT. 181
not penal justice, and if the former were within the power of
Congress, (which is denied,) yet such preventive justice has not
been exercised in a constitutional manner. Because the princi-
ples of the only preventive justice known to American jurispru*
dence, require,
1. That some probable ground of suspicion be exhibited to some
judicial authority ; the act refers it to the President.
2. That it be supported by oath or affirmation ; the act requires
none.
3. That the party may avoid imprisonment by pledges of legal
conduct, sufficient in the judgment of some judicial authority ;
the act denies this privilege, or refers it to the discretion of
the President.
4. The party may have a writ of habeas corpus if wrongfully
confined ; the act allows the President to send an alien off
before he can obtain such writ, thus unconstitutionally sus-
pending the privilege of the writ.
5. The party may be discharged from confinement, by order of
the proper judicial authority, for good cause ; the act confers
the power on the President alone.
4. But the act contemplates penal justice; involving,
1. Banishment from the country of the alien's choice; and per-
haps of his tenderest relations.
2. Loss of employment and property.
3. A sea-voyage ; dangerous in itself, and also from the casualties
incident to time of war.
4. Possible vindictiveness of the country whence he emigrated.
2. Answers to arguments to prove the act constitutional.
1. The admission of aliens being a favour, it is not therefore
revocable by the Federal Government ; because,
1. If revocable at all, it does not follow that the Constitution has
given to that government the power to revoke it.
2. Favours are not always revocable, as grants of land, pardon
to a malefactor, naturalization, &c.
2. Aliens not being parties to the Constitution, it does not follow
that Congress may invade, as to them, the rights and privileges
it secures; because,
1. Such absolute authority may have been left to the states, or
at least may not have been conferred on Congress.
2. But aliens, though not parties to the Constitution, are entitled,
whilst they conform to it, to its protection, as to the protection
of the laws, to which also they are not parties.
3. Upon similar reasoning aliens might not be banished only,
but capitally punished by the President, without a trial.
3. That aliens, by the law and practice of nations may be removed
at pleasure for offences against the law of nations, and that
Congress is authorized to define and punish such offences, does
not justify the indiscriminate expulsion of all aliens; because,
182 ANALYSIS OF REPORT.
1. A\ien~enemies alone, are thus subject to the law of nations,
alien-friends (except public ministers), being subject to the
municipal law.
2. The act being admitted to be penal, must be justified by some
offence deserving punishment.
3. Offences for which aliens within the jurisdiction of a country,
are punishable, are,
1. Those committed by their states; which is the case of
alien-enemies, admitted to be subject to the laws of nations,
and so within the control of Congress.
2. Those committed by aliens personally ; which is the case
of alien-friends, who, like citizens, are subject to the mu-
nicipal law, and so not amenable to Congress.
4. The laws of nations distinguish between alien-friends, and
alien-enemies, allowing the removal of the latter at discretion,
but holding the former to be under a temporary allegiance,
and entitled to a corresponding protection.
4. That Congress may grant letters of marque and reprisal, and
that reprisals may be made on persons as well as property,
does not justify the act; because,
1. Reprisals are a mode of obtaining justice by seizure of per-
sons or property for injuries done by a state, or its members,
to another state, or its members, when the aggressor refuses
redress.
2. No injury is alleged or implied from any particular nation,
for which this proceeding may afford reparation. It is directed
against aliens of all nations.
5 r That Congress has power to make war does not justify the act,
which is applicable to alien -friends.
6. That Congress may protect each state against invasion, and
provide for repelling invasion, does not justify it; because,
1. These powers do not add to the general power of war.
2. Invasion is only one operation of war; and what is not inci-
dent to the power of war generally, cannot be so to any of
its operations.
3. A power to act when a case occurs, does not include a power
over all means which tend to prevent the occurrence ; which
would frustrate every practicable definition of limited powers.
Thus it would involve,
1. A power over religion, lest a bigoted and tyrannical state
should invade us on account of our belief.
2. A power over popular instruction, and over the provision
for the poor, as tending to prevent insurrections, &c.
7. That the Constitution has given to the states no power to re-
move aliens, and that there would be, else, no power in the
country to send away such as are dangerous, does not justify
the Alien-act; because,
1. Several powers^are withheld from both the federal and state
governments, as to tax exports ; so that the non-possession of
ANALYSIS OF REPORT. 183
a power by the state governments, does not imply its posses-
sion by the federal government.
2. The powers of the state governments are not the gift of the
Federal Constitution, but the residuum remaining in the states,
after the delegation of certain 'specific powers to the Union.
8. The Alien -Act is not vindicated by the example of the Vir-
ginia taw of 1785, re-enacted in 1792, which referred to alien-
enemies.
2. The Alien- Act unites legislative, executive, and judicial power in the
hands of the President.
1. Legislative : Because details, especially as to crimes, are essential
to the idea of a law ; and here every circumstance of danger, sus-
picion, and secret machination is to be defined by the will of the
President.
2. Judicial : Because the President is to judge whether the circum-
stances exist, which he, as a legislator, has resolved shall be sus-
picious, &c.
3. Executive : Because he is to execute his own decrees, by removal
of the party suspected.
3. This union of powers subverts the gen'eral principles of free govern-
ment, which require the three great functions to be kept in distinct
hands.
4. It also subverts the particular organization of the Federal Constitu-
tion, which provides for the separation of those powers.
II. THE SEDITION-ACT : Of which it is said that,
1. It exercises a power not delegated by the Constitution, wherein of
1. The argument that the common law is part of the law of the
United States in their national capacity : therein consider,
1. That before the Revolution, the common law, however it may
have existed, with more or less modification in all the colonies,
did not pervade the whole as one society ; because,
1. It was not the same in any two colonies: the modifications
being materially different in many.
2. There was no common legislature to enact, nor common
, magistracy to enforce it.
2. That the Revolution did not imply, nor introduce it as a law of
the Union ; because,
1. The fundamental principle of the Revolution was, that the
colonies were united by a common executive, but not by a
common legislative sovereign.
2. Parliamentary regulation of trade [mere practice without
right], was acquiesced in without inquiry, but the assumption
of a power to legislate in Ml cases, resulted in the conclusion
that Parliament could not legislate in any case.
3. The interval between the beginning of the Revolution and the
final ratification of the Articles of Confederation, did not intro-
duce it ; the nature and extent of the Union being, in that inter-
val, determined by the crisis only.
4. The Articles of Confederation did not adopt it ; because,
184 ANALYSIS OF REPORT.
1. Nothing in the instrument countenances such an idea.
2. Every power, jurisdiction, and right, not expressly delegated,
is retained.
5. The present Constitution did not introduce it ; wherein con-
sider,
1. That particular parts of the common law may have a sanc-
tion from the Constitution ; being,
1 . So, much as is comprehended in the technical phrases
thereof.
2. Such other parts as Congress may adopt as means neces-
sary and proper to carry into effect the powers delegated.
2. The clause supposed to justify the conclusion that the com-
mon law, generally, is the law of the Union, viz. :
That which extends the judicial power to all cases in law
and equity, arising under the Constitution, laws, &c., of the
United States ; wherein consider,
1. That cases may arise under the Constitution, distinct
from such as arise out of laws and treaties, without sup-
posing the common law part of the Constitution, viz. :
1. Cases involving restrictions on states; as to emit bills
of credit, &c.
2. Cases between citizens of different states, &c.
2. That the phrase, " cases in law and equity," refers only
to civil cases : whereas the common law includes criminal
cases also ; because,
1. Criminal cases in law and equity, would be a language
unknown to the law.
2. Appellate jurisdiction, in such cases of " law and
equity," is given (with one or two exceptions) to the
Supreme Court, both as to law and fact, which excludes
criminal cases.
3. The judicial power is not (by Amendment XI. of Con-
stitution) to be construed to extend to any suit in law or
equity, of an individual against a state; which also
excludes the idea of criminal cases.
3. That the phrase, " cases in law and equity," referring at
any rate only to civil cases, could not justify the Sedition-
Act, which is a criminal statute.
4. That the clause in question, though it involved the com-
mon law, both in civil and criminal cases, defines the
extent of the judicial, and not of the legislative power.
3. That the descriptions in the Constitution of the law of the
United States, do not embrace the common law, viz. :
1. That which is meant as a guide to United States judges,
"The Constitution, and laws and treaties in pursuance
thereof." Article III., section 1.
2. That which is meant as a guide to state judges, " The
Constitution, and laws and treaties in pursuance thereof,
shall be the supreme law of the land." Article VI.
ANALYSIS OF REPORT. 185
4. The difficulties and consequences of a constructive introduc-
tion of the common law, viz. :
1. The difficulties :
1. Is it with or without the British statutes?
2. If witfi them, to what period ; the oldest or youngest
colony, or a mean ?
3. Is regard to be had to colonial modifications ? If so,
which? how? &c.
2. The consequences flowing from such construction.
1. As to the several departments of the Federal Govern-
ment : and therein as to,
1. The legislative authority of the Union :
1. If the common law be established by the Consti-
tution,
1. No part of it could be altered. Statutes miti-
gating its barbarous severities, including the sedi-
tion-law itself, would be void.
2. The whole code, with all its incongruities, &c.,
would be inviolably saddled on the people.
2. If the common law be supposed not fixed by the
Constitution, but liable to alteration by Congress,
It extends the authority of Congress to every sub-
ject of legislation, (for the common law embraces
all,) and emancipates it from all limitations.
* 2. The executive authority :
1. The President's authority to execute, will be co-
extensive with the legislative power to enact.
2. The President's authority might be extended to the
prerogatives which the common law confers on the
crown.
3. The judicial authority :
1. If the common law has a constitutional obligation,
The judges would possess a discretion little short
of legislative power, which would be perma-
nent and uncontrollable.
2. If it be of only legal obligation, subject to Congress :
1. The dangerous discretion would exist, of deter-
mining what parts of the common law are adapted
to the circumstances of the country.
2. This discretion must continue until Congress
could enact a full system of Jaws.
2. As to the authority of the states :
Their residuary sovereignty would be overwhelmed
by this one construction.
2. Other arguments founded on various parts of the Constitution, viz. :
1. On the preamble to the Constitution ; wherein consider,
That this part of an instrument is never allowed to be set up
in opposition to the plain meaning of the body thereof.
186 ANALYSIS OF REPORT.
2. On the clause which gives Congress power to lay and collect
taxes, &c., to pay the debts, and provide for the common defence
and general welfare, &c.
The effect of this already considered, (ante, p. 179-80,) and
supposed not to enlarge the enumerated powers of Congress.
3. On the clause which empowers Congress to make all laws
necessary and proper to carry into effect the powers conferred
by the Constitution ; wherein consider,
1. That this clause confers no new powers, but merely declares
[what, at any rate, would have been implied], that the grant
of a power shall include the means of its execution.
2. The mode of reasoning to be pursued under this clause.
1. To determine if the power to be exercised is expressed in
the Constitution.
2. If not, to see if it is properly incident to any express
power, arid necessary to its execution.
3. The express power to which the enactment of a sedition law
is supposed to be incident:
The power to suppress insurrections ; wherein consider,
1. That if a power to suppress, authorizes whatever tends to
prevent, the power of Congress is unlimited.
2. That the contemporaneous construction, whilst the Consti-
tution was under discussion, was nem. con., that the inci-
dental power must have to the principal the relation of
necessity, and not of mere tendency to promote.
3. That such a construction frustrates an appeal to the
judiciary, which can exert a judicial control if the relation
of necessity is to exist, but not if a tendency to promote is
enough.
2. The sedition-act exercises a power positively forbidden by one of the
amendments to the Constitution ; wherein consider,
I . That the freedom of the press is not to be determined by the meaning
of the phrase at common law ; and therein consider,
1. That the sedition-act abridges the freedom of publication even by
the common law of England.
2. That the common law idea of freedom of the press, viz.,
exemption from all previous restraint, is not the American idea ;
because,
1. There is no material difference between a previous restraint,
and a subsequent punishment of publications.
2. There is an essential difference between the government of
Great Britain, and of America, requiring in the latter greater
freedom of remark.
3. The object in the British government is to protect the press
from the assaults of the executive. In America we desire to
protect it, also, against the legislature.
4. That not only is freedom of the press secured by the Constitu-
tion in America, and in England merely by law, and not only
does it extend in the former as well to subsequent penalties, as
ANALYSIS OF REPORT. 187
previous restraint, but the actual freedom is greater in America
than in England ; wherein consider,
1. The difference in the governments, those of America being
wholly elective and responsible.
2. The practice in England in respect to the elective and re-
sponsible members of the government.
3. The practice in the several states of the confederacy.
4. The good effects which have resulted from this free animad-
version.
1. In the world at large.
2. As respects our Revolution, which was promoted by can-
vassing the measures of government.
3. As respects the present Federal Constitution, which was
substituted for the Articles of Confederation, in consequence
of the latter's defects being freely investigated.
3. That freedom of conscience and of religion are guaranteed by the
same clause which relates to freedom of the press, and the former
cannot be supposed to be limited by the common law meaning.
2. That the amendment in question positively denied to Congress any
power over the press, and does not suppose such power to exist, with
the qualification that its freedom shall not be abridged ,* because,
1. The provision was recommended by the ratifying conventions of
several states with a view to exclude Congress from all power over
the subject.
2. The amendment was introduced in order to quiet the apprehensions
of those states.
3. It is more reasonable to deem the power withheld, than to suppose
one so important left to vague construction.
4. The peculiar magnitude of some of the powers of the Federal
Government, the duration of some of its offices, and the distance
of many of the people from the seat of government, are reasons
why it might have been the policy of the Federal Constitution to
exempt the press from federal jurisdiction.
3. The exercise of this power over the press ought, more than any other,
to produce universal alarm ; and therein consider,
1. That the responsibility of officers of government cannot be secured
without a free investigation of their conduct and motives.
2. That it is the right and duty of every citizen to make such inves-
tigation, and promulge the results.
3. That in the several elections, during the continuance of the sedi-
tion-act, it would tend to screen the incumbents of office from
inquiry.
4. That it is no defence of the act that it allows the truth of the publi-
cation to be proved, and only punishes what is false; because,
1. Formal legal proof, even of facts, in political disquisition, is
extremely difficult.
2. Opinions, inferences and conjectural observations, necessary
concomitants of free inquiry, cannot generally be proved at all, in
court.
188 ANALYSIS OF REPORT.
5. That it is no defence of the act that the intent must be to defame,
of bring into contempt, disrepute, or hatred, for such is ever the
object of one who thinks he has discovered an error.
6. That the right of election (which depends on full information) is
the essence of a free government, and is impaired by the sedition-
act.
1 . Competitors against incumbents of office have not an equal chance,
the latter being shielded by the act.
2. The people cannot fully discuss and ascertain the relative merits
of such competitors and incumbents.
6th Resolution. Refers to a declaration of the Virginia Convention which
ratified the Federal Constitution, touching freedom of the press, and
affirms that it would be a criminal degeneracy now to be indifferent
to so palpable a violation thereof, &c. ; wherein of,
1. The declaration of the Virginia Convention in tot verbis.
2. Acquiescence in the violation of freedom of the press'would yield
a similar power over religion and conscience ; for,
1. Neither power was delegated.
2. Both were reserved by the same amendment, recommended and
made at the same time.
3. The common law measure applies to one, as well as to the
other.
4. A similar form of words is used to guarantee both.
1th Resolution. Professes sincere affection for the people of the other
states, and anxiety to perpetuate the Union, and appeals to the other
states to concur in declaring the alien and sedition-laws unconstitu-
tional, and to take necessary and proper measures to maintain unim-
paired the authorities, rights, and liberties reserved to the states
respectively, or to the people ; wherein consider,
1. That such declaration is no invasion of the functions of the judiciary/
being a mere declaration of opinion.
2. That the relations of the state legislatures to the Federal Govern-
ment justified such a declaration; for,
1. They might address Congress to repeal the laws.
2. They might instruct or request their own senators and representa-
tives to vote to repeal the laws.
3. They might originate an amendment to the Constitution.
3. That neither the object (to maintain the Constitution, &c.) nor the
means (such as were necessary and proper) could be objected to.
4. That during the discussions on the ratification of the Federal Con-
stitution, a vigilant supervision of the Federal Government by the
state legislatures, was deemed a recommendation.
In view of all which the adoption of the following resolution is recom-
mended.
Resolved, That the General Assembly, having carefully and respectfully
attended to the proceedings of a number of the states, in answer to its
resolutions of December 21, 1798, and having fully reconsidered the
REPORT OF 1799. 189
latter, find it to be its indispensable duty to adhere to the same, as
founded in truth, as consonant with the Constitution, and as conducive to
its preservation ; and more especially to be its duty to renew, as it does
hereby renew, its protest against "the alien and sedition acts," as palpa-
ble and alarming infractions of the Constitution.
REPORT OF 1T99.
VIRGINIA.
HOUSE OF DELEGATES.
Report of the committee to whom ivere referred the communications of
various states relative to the resolutions of the General Assembly of this
state, concerning the Alien and Sedition- Laic s.
WHATEVER room might be found in the proceedings of some of the
states who have disapproved of the resolutions of the General Assembly
of this commonwealth, passed on the 21st day of December, 1798, for
painful remarks on the spirit and manner of those proceedings, it appears
to the committee most consistent with the duty, as well as dignity of the
General Assembly, to hasten an oblivion of every circumstance which
might be construed into a diminution of mutual respect, confidence, and
affection, among the members of the Union. ,
The committee have deemed it a more useful task, to revise, with a
critical eye, the resolutions which have met with this disapprobation ; to
examine fully the several objections and arguments which have appeared
against them ; and to inquire whether there be any errors of fact, of
principle, or of reasoning, which the candour of the General Assembly
ought to acknowledge and correct.
The first of the resolutions is in the words following:
Resolved, That the General Assembly of Virginia doth unequivocally
express a firm resolution to maintain and defend the Constitution of the
United States, and the Constitution of this state, against every aggression,
either foreign or domestic, and that they will support the government of
the United States in all measures warranted by the former.
No unfavourable comment can have been made on the sentiments here
expressed. To maintain and defend the Constitution of the United States,
and of their own state, against every aggression, both foreign and domes-
tic, and to support the government of the United States in all measures
warranted by their Constitution, are duties which the General Assembly
190 REPORT OF 1799.
ought always to feel, and to which, on such an occasion, it was evidently
proper to express its sincere and firm adherence.
In their next resolution The General Assembly most solemnly declares
a warm attachment to the union of the states, to maintain which it
pledges all its powers / and that, for this end, it is its duty to watch
over and oppose every infraction of those principles, which constitute the
only basis of that union, because a faithful observance of them can alone
secure its existence and the public happiness.
The observation just made is equally applicable to this solemn declara-
tion, of warm attachment to the union, and this solemn pledge to maintain
it; nor can any question arise among enlightened friends of the union, as
to the duty of watching over and opposing every infraction of those princi-
ples which constitute its basis, and a faithful observance of which can
alone secure its existence, and the public happiness thereon depending.
The third resolution is in the words following :
That this Assembly doth explicitly and peremptorily declare, that it
views the powers of the Federal Government, as resulting from the com-
pact, to which the states are parties, as limited by the plain sense and
intention of the instrument constituting that compact ; as no farther
valid than they are authorized by the grants enumerated in that com-
pact ; and that in case of a deliberate, palpable and dangerous exercise of
other poivers, not granted by the said compact, the states who are parties
thereto have the right, and are in duty bound, to interpose for arresting
ike progress of tlve evil, and for maintaining within their respective
limits, the authorities, rights, and liberties appertaining to them.
On this^resolution, the committee have bestowed all the attention which
its importance merits ; they have scanned it not merely with a strict, but
with a severe eye ; and they feel confidence in pronouncing, that, in its
just and fair construction, it is unexceptionably true in its several positions,
as well as constitutional and conclusive in its inferences.
The resolution declares, first, that "it views the powers of the Federal
Government, as resulting from the compact to which the states are par-
ties ;" in other words, that the Federal powers are derived from the Con-
stitution, and that the Constitution is a compact to which the states are
parties.*
Clear as'the position must seem, that the federal powers are derived from
* The position that the powers of the Federal Government result from a compact to
which the states are parties, has been assailed as if it assumed that the idea of a Con-
stilution was thereby excluded, and the government converted into a mere confedera-
tion. (1 Story's Comrns. on Constitution, 287.) But the essential question to which the
attention of the writer seems to have been directed, was not as to the nature of the
Constitution, whether it were an instrument of confederation, or of government, but it
was as to who are the parlies thereto, the aggregate people of the whole Union, or the
states in their highest sovereign capacity, not represented by their ordinary govern-
ments, but by delegates deputed for the sole purpose of expressing the will of the people
of each state on the subject.
Whether or not it follows that because the states are parties to the Federal Govern,
ment, they must, therefore, be the rightful judges in the last resort of alleged usurpa-
tions by that government, in any or all of its departments, is submitted to the reader
upon the reasoning in the text. (See, also, 1 Tuck. Bl. App. 170.)
REPORT OF 1799. 191
the Constitution, and from that alone, the committee are not unapprised of
a late doctrine, which opens another source of federal powers, not less
extensive and important, than it is new and unexpected. The examination
of this doctrine will be most conveniently connected with a review of a
succeeding resolution. The committee satisfy themselves here with briefly
remarking, that in all the cotemporary discussions and comments which
the Constitution underwent, it was constantly justified and recommended,
on the ground, that the powers not given to the government, were with-
held from it ; and that, if any doubt could have existed on this subject,
under the original text of the Constitution, it is removed, as far as words
could remove it, by the 12th amendment, now a part of the Constitution,
which expressly declares, " that the powers not delegated to the United
States, by the Constitution, nor prohibited by it to the states, are reserved
to the states respectively, or to the people."
The other position involved in this branch of the resolution, namely,
" that the states are parties to the Constitution or compact," is, in the
judgment of the committee, equally free from objection. It is indeed true,
that the term " states," is sometimes used in a vague sense, and some-
times in different senses, according to the subject to which it is applied.
Thus, it sometimes means the separate sections of territory occupied by
the political societies within each ; sometimes the particular governments,
established by those societies ; sometimes those societies as organized into
those particular governments; and, lastly, it means the people composing
those political societies, in their highest sovereign capacity. Although it
might be wished that the perfection of language admitted less diversity in
the signification of the same words, yet little inconveniency is produced
by it, where the true sense can be collected with certainty from (he diffe-
rent applications. In the present instance, whatever different construc-
tions of the term " states," in the resolution, may have been entertained, all
will at least concur in that last mentioned ; because, in that sense, the Con-
stitution was submitted to the "states:" in that sense the "states" ratified it :
and, in that sense of the term " states," they are consequently parties to
the compact, from which the powers of the federal government result.*
The next position is, that the General Assembly views the powers of
the federal government, " as limited by the plain sense and intention of
the instrument constituting that compact," and " as no farther valid than
they are authorized by the grants therein enumerated." It does not seem
possible, that any just objection can lie against either of these clauses.
The first amounts merely to a declaration, that the compact ought to have
* This paragraph seems (o have in view some observations of Mr. GEORGE KEITH
TAYLOR, in the debate on the Resolutions in 1798, ante, pp. 122 to 126. The Resolu-
tions, as originally introduced into the House of Delegates, had the word " alone" fol-
lowing '* states" so as to make that clause read thus : " to which the states alone are
parties." Mr. Taylor's remarks, which are very ingenious, tended to show that the
states, which he interpreted to mean the ordinary governments of the states, were
not parties to the Federal Constitution, at all, much less, sole parties. His argument
so far prevailed as to induce Mr. GILES to move to strike out the word " alone," in which
Mr. JOHN TAYLOR of Caroline, the mover of the resolutions, concurred, and it was
stricken out accordingly. (See ante, pp. 148 and 150.)
192 REPORT OF 1799.
the interpretation plainly intended by the parties to it ; the other to a
declaration, that it ought to have the execution and effect intended by
them. If the powers granted, be valid, it is solely because they are
granted : and, if the granted powers are valid, because granted, all other
powers not granted, must not be valid.
The resolution, having taken this view of the federal compact, pro-
ceeds to infer, "that, in case of a deliberate, palpable, and dangerous
exercise of other powers, not granted by the said compact, the states, who
are parties thereto, have the right and are in duty bound to interpose for
arresting the progress of the evil, and for maintaining within their respec-
tive limits, the authorities, rights, and liberties appertaining to them."
It appears to your committee to be a plain principle, founded in com-
mon sense, illustrated by common practice, and essential to the nature of
compacts, that, where resort can be had to no tribunal, superior to the
. authority of the parties, the parties themselves must be the rightful judges
y in the last resort, whether the bargain made has been pursued or violated.
*J The Constitution of the United States was formed by the sanction of the
states, given by each in its sovereign capacity. It adds" to the stability
and dignity, as well as to the authority of the Constitution, that it rests on
this legitimate and solid foundation. The states, then, being the parties to
the constitutional compact, and in their sovereign capacity, it follows of
necessity, that there can be no tribunal above their authority, to decide in
the last resort, whether the compact made by them be violated ; and, con-
sequently, that, as the parties to it, they must themselves decide, in the
last resort, such questions as may be of sufficient magnitude to require
^Jheir interposition.
I It does not follow, however, that because the states, as sovereign parties
/ to their constitutional compact, must ultimately decide whether it has been
/ violated, that such a decision ought to be interposed, either in a hasty
^manner, or on doubtful and inferior occasions. Even in the case of ordi-
nary conventions between different nations, where, by the strict rule of
interpretation, a breach of a part may be deemed a breach of the whole,
every part being deemed a condition of every other part and of the whole,
it is always laid down that the breach must be both wilful and material to
justify an application of the rule. But in the case of an intimate and
constitutional union, like that of the United States, it is evident that the
interposition of the parties, in their sovereign capacity, can be called for
by occasions only, deeply and essentially affecting the vital principles of
their political system.
The resolution has accordingly guarded against any misapprehension
of its object, by expressly requiring for such an interposition, " the case
of a deliberate, palpable, and dangerous breach of the Constitution, by
the exercise of powers not granted by it. It must be a case, not of a light
and transient nature, but of a nature dangerous to the great purposes for
which the Constitution was established. It must be a case, moreover, not
obscure or doubtful in its construction, but plain and palpable. Lastly, it
must be a case not resulting from a partial consideration, or hasty deter-
mination ; but a case stamped with a final consideration and deliberate ad-
REPORT OF 1799. 193
herence. It is not necessary, because the resolution does not require that the
question should be discussed, how far the exercise of any particular power,
ungranted by the Constitution, would justify the interposition of the par-
ties to it. As cases might easily be stated, which none would contend
ought to fall within that description ; cases, on the other hand, might, with
equal ease, be stated, so flagrant and so fatal, as to unite every opinion in
placing them within that description.*
* The cautious and moderate language of the text is worthy of observation. The cases
proper for interposition by the states are said to be such only as involve deliberate, pal-
pable, and dangerous breaches of the Constitution, by the exercise of powers not granted.
The objects of interposition are merely to arrest the progress of the usurpation, and to
main tain Tne authorities, rights, and liberties of the states, as parties to the Constitution.
* Force, on this occasion, at least, appears to have been neither threatened nor contem-Hk
plated. The moral influence of the sentiment of the states and of the people was relied
upon. Not only does this appear from the declarations of Mr. Madison, in his letter to
Ingersoll, post, p. 257, but it is abundantly manifested by the tenor of the debates on
the resolutions, and by the report. Thus Mr. MERCER, replying to Mr. GEORGE K.
TAYLOR, holds this language : "The gentleman from Prince George had told the com-
mittee that the resolutions introduced! by the gentleman from Caroline were calculated
to rouse the people to resistance, to excite the people of Virginia against the federal
government. Mr. M. did not see how such consequences could result from their adop.
tion. They contained nothing more than the sentiments which the people in many
parts of the state had expressed, and which had been conveyed to the legislature in
their memorials and resolutions, then lying upon the table." See ante, p. 41. Again :
"The state believed some of its rights had been invaded by the late acts of the federal
government, and proposed a remedy whereby to obtain a repeal of them. The plan
contained in the resolutions appeared to Mr. M. the most advisable. Force was not-^-
thought of by any one." Ante, p. 42. Then, after citing seme passages from the
Federalist, to show that state interposition had been contemplated by the authors of
that work, he argues that not only is the right of the states to communicate with each
other defended by that authority, but that the adoption of a regular plan of opposi-
tion, in which they should combine' all their resources, would also be justified by it.
" But no such wish," says he, " is entertained by the friends of the resolutions ; their
object in addressing the states is to obtain a similar declaration of opinion," &c,
Ante, p. 44.
Mr. BARBOUR observed, "that the gentleman from Prince George had remarked that
these resolutions invited the people to insurrection and to arms. But, Mr. B. said, that
if he could conceive the consequence foretold would grow out of the measure, he would
become its bitterest enemy, for he deprecated intestine commotion, civil war, and blood-
shed, as the most direful evils which could befall a country, except slavery. A Ifesort
to arms was the last appeal of an oppressed, an injured nation, and was never made but
when public servants converted themselves, by usurpation, into masters, and destroyed
rights once participated; and then it was justifiable." Ante, p. 54. Again: "The
gentleman from Prince George was for the people's rising en masse, if the law was
unconstitutional. For his part, he was for using no violence. It was the peculiar
blessing of the American people to have redress within their reach by constitutional
and peaceful means." Anie, p. 59.
Mr. JOHN TAYLOR, of Caroline, spoke of the threats of war, and the apprehension of
civil commotion, towards which the resolutions were said to have a tendency. " Are
the republicans," said he, " possessed of fleets and armies ? If not, to what could they
appeal for defence and support? To nothing, except public opinion. If that should
be against them, they must yield." Ante, p. 113. And he is not less emphatic and
distinct in a subsequent passage. Ante, pp. 11415. See also the report, post r
pp. 230-31.
It has been suggested, however, as proof that resistance by force was meditated, that
Virginia prepared herself for the anticipated conflict by establishing arsenals, and
13
-t-
194 REPORT OP 1799.
But the resolution 'has done more than guard against misconstruction,
by expressly referring to cases of a deliberate, palpable, and dangerous
nature. It specifies the object of the interposition which it contemplates,
to be solely that of arresting the progress of the evil of usurpation, and
of maintaining the authorities, rights, andjiberties appertaining to the
states, as parties to the Constitution.
From this view of the resolution, it would seem inconceivable that it
erecting 1 armories. The fact standing alone, hardly warrants the inference under any
conceivable circumstances, but especially does it not warrant it in the face of the decla-
rations just cited of the prominent guides and advocates of the action of the state, at
that period. But, in truth, the armory and arsenal bill was enacted 23d January, 1798,
about six months before the alien and sedition-laws were passed, and three months,
probably, before they were contemplated, at a time When Mr. Adams's administration,
though certainly not popular in Virginia, was not particularly obnoxious. Can it be
believed, indeed, that a party which could marshal so much talent and character, and
so respectable an array of numbers against the less extreme measure of the resolutions
of the succeeding session of 1798-9, when the provocation was infinitely greater, would
have failed to penetrate the belligerent purpose of that bill, if any had existed, or that
perceiving it, they would have hesitated to expose and denounce it?
This note, protracted, as it is, ought not to be concluded without referring to the
temper of wise forbearance which, at this perilous crisis, was earnestly inculcated by
Mr. JEFFERSON. In a letter to Mr. JOHN TAYLOR, in June, 1798, he says :
" Mr. New showed me your letter, which gave me an opportunity of observing what
you said as to the effect with you, of public proceedings, and that it was not unwise
now to estimate the separate mass of Virginia and North Carolina, with a view to their
separate existence. It is true that we are completely under the saddle of Massachusetts
and Connecticut, and that they ride us very hard, insulting our feelings, as well as ex-
hausting our strength and substance. Their natural friends, the three other eastern
states, join them from a sort of family pride, and they have the art to divide certain
other parts of the Union, so as to make use of them to govern the whole." Then, after
observing that this was not the natural state of things, and that time, of itself, would
bring relief, which besides was likely to be hastened by impending events, he continues :
" Be this as it may, in every free and deliberating society, there must, from the nature
of man, be opposite parties, ami violent dissension and -discords ; and one of these, for
the most part, must prevail over the other, for a longer or shorter time. Perhaps this
party division is necessary to induce each to watch, and delate to the people the pro-
ceedings of the other. But if, on a temporary superiority of the one party, the other is
to resort to a scission of the Union, no federal government can ever exist. If, to rid
ourselves of the present rule of Massachusetts and Connecticut, we break the Union,
will tfce evil stop there ? Suppose the New England states alone cut off, will our na-
tur.es be changed ? Are we not men still, to the south of that, and with all the passions
of men ? Immediately we shall see a Pennsylvania and a Virginia party arise in the re-
siduary confederacy, and the public mind will be distracted with the same party-spirit.
What a game, too, will the one party have in their hands, threatening the other that
unless they do so and so, they will join their northern neighbours ! If we reduce our
Union to Virginia and North Carolina, immediately the conflict will be established be-
tween the representatives of these two states, and they will end by breaking into their
simple units. Seeing, therefore, that an association of men who will not quarrel with
one another, is a thing which never yet existed, from the greatest confederacy of nations,
down to a town-meeting, or a vestry ; seeing that we must have somebody to quarrel
with, I would rather keep our New England associates for that purpose, than to see
pur bickerings transferred to others." <r It is true that, in the mean time, we are suffer-
ing deeply in spirit, and incurring the horrors of a war, and long oppressions of enor-
mous public debt. But who can say what would be the evils of a scission, and when
and where they would end ? Better keep together as we are, haul off from Europe as
soon as we can, and from all attachments to any portion of it," &c. (3 Jeff. Mem., &c.,
393,)
REPORT OF 1799. 195
can incur any just disapprobation from those who, laying aside all momen-
tary impressions, and recollecting the genuine source and object of the
Federal Constitution, shall candidly and accurately interpret the meaning
of the General Assembly. If the deliberate exercise of dangerous powers,
palpably withheld by the Constitution, could not justify the parties to it,
fin interposing even so far as to arrest the progress of the evil, and thereby
to preserve the Constitution itself, as well as to provide for the safety of
the parties to it, there would be an end to all relief from usurped power,
and a direct subversion of the rights specified or recognised under all the
state constitutions, as well as a plain denial of the fundamental principle
on which our independence itself was declared,
*JL But it is objected that the judicial authority is to be regarded as the sole
' expositor of the Constitution, in the last resort ; and it may be asked for
what reason, the declaration by the General Assembly, supposing it to be
theoretically true, could be required at the present day and in so solemn
a manner.
On this objection it might be observed, first, that there may be in-
stances of usurped power, which the forms of the Constitution would never
draw within the control of the judicial department;* secondly, that
if the decision of the judiciary be raised above the authority of the
* Judge Story holds that each department of the government, and each member of
every department, is the interpreter of the Constitution for itself, in the first instance,
whenever called upon to act under it. If the question is not of a nature to be capable
of a judicial decision, he considers such determination by the department called on to
act, whether it be the executive, or the legislative, to be final. If it be capable of
judicial investigation, he regards the judicial power and the Supreme Court as the
head thereof, the final arbiter of the constitutionality of the act.
As to the second observation in the text, that the judicial department may also exer-
cise or sanction dangerous powers, not granted by the Constitution, Judge Story
esteems it a case not to be supposed, or that, at all events, the people, in forming the
Constitution for the Union, in like manner as in forming the state constitutions,
have relied upon the judiciary as the ultirpate barrier against usurpation, or the exercise
of unconstitutional power.
The difference between these views is certainly marked, but it is less considerable
than at first view may appear.
According to the text, if all the departments of government, including the judiciary
(where the question is of a nature to be submitted to it,) combine to commit or to sane-
tion, a deliberate, palpable, and dangerous violation of the Constitution, the states, as
parties to the Constitution, may determine, in the last resort, whether the alleged viola-
tion has occurred, and may interpose to arrest the evil.
Judge Story allows of no interposition by the states, but insists that, in the case
supposed, when the evil has become no longer endurable, resort must be had, by the
people, and not by the states, to the ultimate right of resistance.
Neither construction discards resistance to dangerous and palpable usurpation.
They only differ as to the means of ascertaining the usurpation in the last resort, and
of setting on foot the resistance, when ascertained. The one refers it to the states as
sovereign members of the confederacy ; the other to the people exclusively. (See 1
Story's Com. on Const., 346 to 375.)
The constitutional remedies against the exercise of unconstitutional power, in Judge
Story's opinion, are : if the Congress be the offender, an appeal to the elective fran-
chise, and, if need be, an amendment of the Constitution ; if the executive is guilty,
an impeachment, and a new election ; if the judiciary, an impeachment, and an altera-
tion, for the future, of the bad law as judicially expounded.
196 REPORT OF 1799.
sovereign parties to the Constitution, the decisions of the other depart-
ments, not carried by the forms of the Constitution before the judiciary,
must be equally authoritative and final with the decisions of that de-
partment. But the proper answer to the objection is, that the resolution
of the General Assembly relates to those great and extraordinary
cases, in which all the forms of the Constitution may prove ineffectual
against infractions dangerous to the essential rights of the parties to it.
The resolution supposes that dangerous powers, not delegated, may not
only be usurped and executed by the other departments, but that the judi-
cial department also may exercise or sanction dangerous powers beyond
, the grant of the Constitution; and, consequently, that the ultimate right of
the parties to the Constitution, to judge whether the compact has been
dahgerousty violated, must extend to violations by one delegated autho-
rity, as well as by another; by the judiciary, as well as by the executive,
or the legislature.
However true, therefore, it may be, that the judicial department, is, in
all questions submitted to it by the forms of the Constitution, to decide in
the last resort, this resort must necessarily be deemed the last in relation
to the authorities of the other departments of the government; not in rela-
tion to the rights of the parties to the constitutional compact, from which
the judicial as well as the other departments hold their delegated trusts.
On any other hypothesis, the delegation of judicial power would annul the
authority delegating it ; and the concurrence of this department with the
others in usurped powers, might subvert for ever, and beyond the possible
reach of any rightful remedy, the very Constitution which all were insti-
tuted to preserve.
The truth declared in the resolution being established, the expediency
of making the declaration at the present day, may safely be left to the
temperate consideration and candid judgment of the American public. It
will be remembered that a frequent recurrence ta fundamental principles,
is solemnly enjoined by most of the state constitutions, and particularly
by our own, as a necessary safeguard against the danger of degeneracy
to which republics are liable, as well as other governments, though in a
less degree than others. And a fair comparison of the political doctrines
not unfrequent at the present day, with those which characterized the
epoch of our revolution, and which form the basis of our republican con-
stitutions, will best determine whether the declaratory recurrence here
made to those principles, ought to be viewed as unseasonable and improper,
or as a vigilant discharge of an important duty. The authority of con- \
/stitutions over governments, and of the sovereignty of the people over j
1 constitutions, are truths which are at all times necessary to be kept in J
\ mind ; and at no time perhaps more necessary than at the present.
* The fourth resolution stands as follows:
That the General Assembly doth also express its deep regret, that a
spirit has in sundry instances, been manifested by the federal govern-
ment, to enlarge its powers by forced constructions of the constitutional
charter which defines them ; and that indications have appeared of a
design to expound certain general phrases, (which, having been copied
REPORT OF 1799. 197
from the very limited grant of powers in the former articles of confedera-
tion, were the less liable to be misconstrued,) so as to destroy the meaning
and effect of the particular enumeration which necessarily explains, and
limits the general phrases ; and so as to consolidate the states, by degrees,
into one sovereignty, the obvious tendency and inevitable result of which
would be, to transform the present republican system of the United States
into an absolute, or, at best, a mixed monarchy.
The first question here to be considered is, whether a spirit has in
sundry instances been manifested by the Federal Government to enlarge
its powers by forced constructions of the constitutional charter.
The General Assembly having declared its opinion merely by re-
gretting in general terms that forced constructions for enlarging the fede-
ral powers have taken place, it does not appear to the committee neces-
sary to go into a specification of every instance to which the resolution
may allude. The alien and sedition-acts being particularly named in a
succeeding resolution, are of course to be understood as included in the
allusion. Omitting others which have less occupied public attention, or
been less extensively regarded as unconstitutional, the resolution may be
presumed to refer particularly to the bank law,* which from the circum-
* The bank law referred to is that of 1791. Its constitutionality was the subject of
warm discussion in Congress. When it had finally passed both houses, and was sub-
mitted to the President, he requested the opinions of the members of the cabinet upon
the constitutional question. Mr. Hamilton deemed the law constitutional. An outline
of his argument may be seen in 2 Marshall's Washington, Notes, p. 5. Mr. Jefferson's
opinion, which he has himself preserved, was adverse to the power of Congress to in-
corporate a bank. (See 4 Jeff, Mem., 523.) The President, after considerable hesita-
tion, signed the bill. That charter having expired in 1811, Congress then refused, in
the Senate by the casting vote of Geo. Clinton, the Vice-President of the United States
and President of the Senate, to renew it. In 1815, a bank bill passed both houses of
Congress, but encountered the veto of President Madison, on the score of some objec-
tional provisions contained in it. But two years afterwards he gave his sanction to
another law for the incorporation of a bank, justifying his disregard of the constitu-
tional objection, which in 1791 he had pressed in Congress with great vigour, upon the
ground that he felt himself obliged by the legislative and executive precedents, which
had occurred, affirming the constitutionality of such a law. (See his letter to Mr. In-
gersoll, post, p. 257, and his veto message of 30th Jan., 1815.)
The question of the validity of the bank law of 1816 was soon brought before the
federal judiciary, and in 1819, in the great case of M'Culloch v. The State of Mary-
land, 4 Wheat., 316, the Supreme Court pronounced, by the mouth of C. J. Marshall,
an unanimous and decided opinion in favour of its constitutionality. The sentiment
upon the subject was not thereby quieted, however. Judge Roane, of Virginia, re-
viewed the judgment of the Supreme Court with freedom and ability, in a series of arti-
cles first published in the Richmond Enquirer, in June, 1819, under the signature of
" Hampden," and amongst the people, the dissentients were numerous and influential.
It was discussed also, along with several other constitutional questions, with his usual
acuteness, by Mr. John Taylor of Caroline, in a work called "Construction Construed,"
which deserves more readers than, by reason of its peculiarity of style, it has had, dr is
likely to have.
In July, 1832, President Jackson vetoed a bill renewing the charter of the bank for
fifteen years from 1836, resting his objections in part upon constitutional grounds, and
in part upon the danger to the institutions of the country from so large a moneyed cor-
poration. A similar fate, at the hands of President Tyler, befell two other laws to in-
corporate a national bank in August and September, 1841.
198 REPORT OF 1799.
stances of its passage, as well as the latitude of construction on which it
is founded, strikes the attention with singular force ; and the carriage tax,*
distinguished also by circumstances in its history having a similar ten-
dency. Those instances, alone, if resulting from forced construction and
calculated to enlarge the powers of the Federal Government, as the com-
mittee cannot but conceive to be the case, sufficiently warrant this part
of the resolution. The committee have not thought it incumbent on them
to extend their attention to laws which have been objected to, rather as
varying the constitutional distribution of powers in the Federal Govern-
ment, than as an absolute enlargement of them ; because instances of this
sort, however important in their principles and tendencies, do not appear
to fall strictly within the text under review.
The other questions presenting themselves, are 1. Whether indica-
tions have appeared of a design to expound certain general phrases copied
from the " articles of confederation" so as to destroy the effect of the par-
ticular enumeration explaining and limiting their meaning. 2. Whether
this exposition would by degrees consolidate the states into one sove-
reignty. 3. Whether the tendency and result of this consolidation would
be to transform the republican system of the United States into a mo-
narchy.
* The act of Congress, of 5th June, 1794, imposing a tax on carriages for the con-
veyance of persons, provoked a degree of opposition, especially in Virginia, the reason
of which it is not, at this day, easy to understand. The complaint respecting it was
that, although it was a direct tax, yet it was laid uniformly through the states, instead
of being apportioned amongst the states, as the Constitution directs, according to popu-
lation. One Hylton, in Virginia, in order to test the question, refused to enter certain
carriages which he acknowled himself to possess, and an action having been instituted
against him, in pursuance of the act, by the District Attorney, in the name of the Uni-
ted States, an agreed case was submitted to the Court, upon which a pro forma judg-
ment was entered against the defendant, and thereupon he obtained a writ of error
from the Supreme Court of the United States. That court pronounced the carriage
tax not to be a direct tax, within the meaning of the Constitution, and that it was pro-
per, therefore, to make it uniform. Congress, it was argued, possesses the power to
tax all subjects of taxation, without limitation, with the exception of a duty on exports.
There are two restrictions only, on the exercise of this authority : 1. All direct taxes
must be apportioned; 2. All duties, imposts, and excises must be uniform. If the car-
riage tax were not a direct tax, within the meaning of the Constitution, nor a duty,
impost, or excise, Congress was under no restriction, as to the mode of laying it, in
which case the tax ought to be uniform. But the Constitution could not have meant
by a direct tax, which it orders to be apportioned, one which could not, with any re-
gard to equality of burden, be apportioned, and if the tax on carriages could not be
equally apportioned, it was, for that reason, not a direct tax. That it could not be so
apportioned was manifest, since the number of carriages in the several states bore no
relation to population, and consequently the tax on them might be $10 in one state,
and $100 in another. The Court intimated an opinion that a direct tax, in the sense
of the Constitution, could mean nothing but a tax on what is inseparably annexed to
the soil, or otherwise capable of apportionment, under all circumstances, according to
population, such as a tax on lands or persons, including slaves. (Hylton v. U. States, 3
Da!l.,171.)
^ This view seems to have been acquiesced in, and when, in 1813, during the war with
Great Britain, it was deemed expedient to resort to extraordinary taxation, a tax on
carriages was again imposed according- to the rule of uniformity. (4 Laws of United
States, 570.)
REPORT OF 1799. 199
I. The general phrases here meant must be those " of providing for the
common defence and general welfare."
In the " articles of confederation," the phrases are used as follows, in
Art. VIII. " All charges of war, and all other expenses that shall be
incurred for the common defence and general welfare, and allowed by the
United Slates in Congress assembled, shall be defrayed out of a common
treasury, which shall be supplied by the several states, in proportion to
the value of all land within each state, granted to, or surveyed for any
person, as such land and the buildings and improvements thereon shall be
estimated, according to such mode as the United States in Congress as-
sembled shall from time to time direct and appoint."
In the existing Constitution, they make the following part of Sec. 8,
"The Congress shall have power to lay and collect taxes, duties, imposts,
and excises, to pay the debts, and to provide for the common defence and
general welfare of the United States."
This similarity in the use of these phrases in the two great federal
charters, might well be considered, as rendering their meaning less liable
to be misconstrued in the latter; because it will scarcely be said, that in
the former they were ever understood to be either a general grant of
power, or to authorize the requisition or. application of money by the old
Congress to the common defence and general welfare, except in the cases
afterwards enumerated, which explained and limited their meaning ; and
if such was the limited meaning attached to these phrases in the very
instrument revised and remodelled by the present Constitution, it can
never be supposed that when copied into this Constitution, a different
meaning ought to be attached to them.
That, notwithstanding this remarkable security against misconstruction,
a design has been indicated to expound these phrases in the Constitution,
so as to destroy the effect of the particular enumeration of powers by
which it explains and limits them, must have fallen under the observation
of those who have attended to the course of public transactions. Not to
multiply proofs on this subject, it will suffice to refer to the debates of the
federal legislature, in which arguments have on different occasions been
drawn, with apparent effect, from these phrases, in their indefinite mean-
ing.
To these indications might be added, without looking farther, the official
report on manufactures, by the late Secretary of the Treasury, made on
the 5th of December, 1791 ; and the report of a committee of Congress,
in January, 1797, on the promotion of agriculture. In the first of these
it is expressly contended to belong " to the discretion of the national legis-
lature to pronounce upon the objects which concern the general welfare,
and for which, under that description, an appropriation of money is requi-
site and proper. And there seems to be no room for a, doubt, that what-
ever concerns the general interests of LEARNING, of AGRICULTURE, of
MANUFACTURES, and of COMMERCE, are within the sphere of the national
councils, as far as regards the application of money."* The latter report
* This report on manufactures, by Mr. Hamilton, is an elaborate exposition of the
protective policy, in all its economical bearings, with reference especially to certain
200 REPORT OP 1799.
assumes the same latitude of power in the national councils, and applies it
to the encouragement of agriculture by means of a society to be established
at the seat of government.* Although neither of these reports may
have received the sanction of a law carrying it into effect, yet, on the
other hand, the extraordinary doctrine contained in both, has passed
without the slightest positive mark of disapprobation from the authority to
which it was addressed.
Now, whether the phrases in question be construed to authorize every
measure relating to the common defence and general welfare, as contended
by some; or every measure only in which there might be an application
of money, as suggested by the caution of others ; the effect must sub-
stantially be the same, in destroying the import and force of the particular
enumeration of powers which follow these general phrases in the Consti-
tution. For it is evident that there is not a single power whatever, which
may not have some reference to the common defence, or the general
welfare ; nor a power of any magnitude, which, in its exercise, does not
involve or admit an application of money. The government, therefore,
which possesses power in either one or other of these extents, is a govern-
ment without the limitations formed by a particular enumeration of powers ;
and consequently, the meaning and effect of this particular enumeration
is destroyed by the exposition given to these general phrases.
This conclusion will not be affected by an attempt to qualify the power
over the " general welfare," by referring it to cases where the general
welfare is beyond the reach of separate provisions by the individual
states ; and leaving to these their jurisdictions, in cases to which their
separate provisions may be competent. For, as the authority of the in-
dividual states must in all cases be incompetent to general regulations
leading articles, such as fabrics of metals, of flax and hemp, of cotton, of wool, of
silk, &c.
The constitutional power of the federal government to apply encouragement ito
manufactures, he disposes of very summarily, employing a process of reasoning not a
little formidable to those who desire to maintain the organization of that government,
as one of specific and limited powers. The sentence quoted in the text, however,
is somewhat qualified by what follows. "The only qualification," Mr. Hamilton pro-
ceeds to observe, "of the generality of the phrase in question which seems to be admis-
sible, is this, that the object to which an appropriation is to be made be general and
not local, its operation extending in fact, or by possibility, throughout the Union, and
not being confined to a particular spot. No objection ought to arise to this construe-
tion from a supposition that it would imply a power to do whatever else should appear
to Congress conducive to the general welfare. A power to appropriate money, with this
latitude, which is granted, too, in express terms, would not carry a power to do any
other thing, not authorized by the Constitution, either expressly or by fair implication."
(See the Report, 7 Amer. State Papers, 13uY)
The constitutional question involved in protective duties is presented on both sides
in 2 Story's Comm. on Const., 429, et seq., and 520, et seq. (See Construction Con-
strued, 203, and Address of Phila. Free-trade Convention of 1831.)
This report will be found 20 Am. State Papers, 154. It proposed to establish a
society under the patronage of the general government, which should extend its influ-
ence through the whole country, and comprehend the extensive object of national im-
provement, but especially the promotion of agriculture. Il was to have been a body
corporate, capable of holding a limited amount of property, and was to be composed,
in part, of the members of Congress, the judges of the Supreme Court, and the heads
of departments.
REPORT OF 1799. 201
operating through the whole, the authority of the United States would be
extended to every object relating to the general welfare, which might, by
any possibility, be provided for by the general authority. This qualifying
construction, therefore, would have little, if any tendency, to circumscribe
the power claimed under the latitude of the terms " general welfare."
The true and fair construction of this expression, both in the original
and existing federal compacts, appears to the committee too obvious to be
mistaken. In both, the Congress is authorized to provide money for the
common defence and general welfare. In both, is subjoined to this au-
thority, an enumeration of the cases to which their powers shall extend.
Money cannot be applied to the general welfare otherwise than by an
application of it to some particular measures, conducive to the general
welfare. Whenever, therefore, money has been raised by the general
authority, and is to be applied to a particular measure, a question arises
whether the particular measure be within the enumerated authorities vested
in Congress. If it be, the money requisite for it may be applied to it ; if
it be not, no such application can be made. This fair and obvious inter-
pretation coincides with, and is enforced by the clause in the Constitution,
which declares, that " no money shall be drawn from the treasury, but in
consequence of appropriations by law." An appropriation of money to
the general welfare would be deemed rather a mockery than an observance
of this constitutional injunction.
2. Whether the exposition of the general phrases here combated would
not, by degrees, consolidate the states into one sovereignty, is a question
concerning which the committee can perceive little room for difference of
opinion. To consolidate the states into one sovereignty, nothing more
can be wanted, than to supersede their respective sovereignties in the
cases reserved to them, by extending the sovereignty of the United States,
to all cases of the " general welfare," that is to say, to all cases whatever.
3. That the obvious tendency and inevitable result of a consolidation of
the states into one sovereignty, would be to transform the republican sys-
tem of the United States into a monarchy, is a point which seems to have
been sufficiently decided by the general sentiment of America. In almost
every instance of discussion, relating to the consolidation in question, its
certain tendency to pave the way to monarchy seems not to have been
contested. The prospect of such a consolidation has formed the only
topic of controversy. It would be unnecessary, therefore, for the commit-
tee to dwell long on the reasons which support the position of the General
Assembly. It may not be improper, however, to remark two conse-
quences evidently flowing from an extension of the federal powers to
every subject falling within the idea of the " general welfare."
One consequence must be, to enlarge the sphere of discretion allotted
to the executive magistrate. Even within the legislative limits properly
defined by the Constitution, the difficulty of accommodating legal regula-
tions to a country so great in extent, and so various in its circumstances,
has been much felt ; and has led to occasional investments of power in the
executive, which involve perhaps as large a portion of discretion as can
be deemed consistent with the nature of the executive trust. In propor-
tion as the objects of legislative care might be multiplied, would the time
202 REPORT OF 1799.
/
allowed for each be diminished, and the difficulty of providing uniform
and particular regulations for all be increased. From these sources would
necessarily ensue a greater latitude to the agency of that department which
is always in existence, and which could best mould regulations of a gene-
ral nature, so as to suit them to the diversity of particular situations. And
it is in this latitude, as a supplement to the deficiency of the laws, that the
degree of executive prerogative materially consists.
The other consequence would be that of an excessive augmentation of
the offices, honours, and emoluments depending on the executive will.
Add to the present legitimate stock, all those of every description which
a consolidation of the states would take from them, and turn over to the
Federal 1 Government, and the patronage of the executive would necessa-
rily be as much swelled in this case, as its prerogative would be in the
other.
This disproportionate increase of prerogative and patronage must, evi-
dently, either enable the chief magistrate of the Union, by quiet means, to
secure his re-election from time to time, and finally, to regulate the suc-
cession as he might please; or, by giving so transcendent an importance
to the office, would render the elections to it so violent and corrupt, that
the public voice itself might call for an hereditary, in place of an elective
succession. Whichever of these events might follow, the transformation
of the republican system of the United States into a monarchy, anticipated
by the General Assembly from a consolidation of the states into one sove-
reignty, would be equally accomplished; and whether it would be into a
mixed or an absolute monarchy, might depend on too many contingencies
to admit of any certain foresight.
The resolution next in order, is contained in the following terms :
That the General Assembly doth particularly protest against the pal-
pable and alarming infractions of the Constitution^ in the two late cases
of the * alien and sedition-acts" passed at the last session of Congress ;
the first of which exercises a power nowhere delegated to the Federal
Government; and which, by uniting legislative and judicial powers to
those of executive, subverts the general principles of a free Government, as
well as the particular organization and positive provisions of the Federal
Constitution ; and the oilier of which acts exercises, in like manner, a
power not delegated by the Constitution ; but, on the contrary, expressly
and positively forbidden by one of the amendments thereto : a power which,
more than any other, ought to produce universal alarm ; because it is
levelled against that right of freely examining public characters and mea-
sures, and of free communication among the people thereon, which has
ever been justly deemed the only effectual guardian of every other right.
The subject of this resolution having, it is presumed, more particularly
led the General Assembly into the proceedings which they communicated
to the other states, and being in itself of peculiar importance, it deserves
the most critical and faithful investigation ; for the length of which no
other apology will be necessary.
The subject divides itself inlofrst, "The alien-act," secondly, "The
sedition-act."
I. Of the " alien-act," it is affirmed by the resolution, 1st. That it
REPORT OF 1799. 203
exercises a power nowhere delegated to the Federal Government. 2d.
That it unites legislative and judicial powers to those of the executive.
3d. That this union of power subverts the general principles of free
government. 4th. That it subverts the particular organization and posi-
tive provisions of the Federal Constitution.
In order to clear the way for a correct view of the first position, several
observations will be premised.
In the first place, it is to be borne in mind, that it being a characteristic
feature of the Federal Constitution, as it was originally ratified, and an
amendment thereto having precisely declared, "That the powers not
delegated to the United States by the Constitution, nor prohibited by it to
the states, are reserved to the states respectively, or to the people," it is
incumbent in this, as in every other exercise of power by the Federal
Government, to prove from the Constitution, that it grants the particular
power exercised.
The next observation to be made is, that much confusion and fallacy
have been thrown into question, by blending the two cases of aliens, mem-
bers of a hostile nation ; and aliens, members of friendly nations" These
two cases are so obviously and so essentially distinct, that it occasions no
little surprise that the distinction should have been disregarded : and the
surprise is so much the greater, as it appears that the two cases are
actually distinguished by two separate acts of Congress, passed at the
same session, and comprised in the same publication ; the one providing
for the case of " alien enemies ;" the other " concerning aliens" indiscri-
minately ; and consequently extending to aliens of every nation in peace
and amity with the United States. With respect to alien enemies, no
doubt has been intimated as to the federal authority over them ; the Con-
stitution having expressly delegated to Congress the power to declare war
against any nation, and of course to treat it and all its members as ene-
mies. With respect to aliens who are not enemies, but members of nations
in peace and amity with the United States, the power assumed by the act
of Congress is denied to be constitutional ; and it is accordingly against
this act, that the. protest of the General Assembly is expressly and exclu-
sively directed.
A third observation is, that were it admitted, as is contended, that the
"act concerning aliens" has for its object not a penal, but a preventive
justice, it would still remain to be proved that it comes within the consti-
tutional power of the federal legislature ; and if within its power, that the
legislature has exercised it in a constitutional manner.
In the administration of preventive justice, the following principles have
been held sacred^: that some probable ground of suspicion be exhibited
before some judicial authority ; that it be supported by oath or affirma-
tion ; that the party may avoid being thrown into confinement, by finding
pledges or sureties for his legal conduct sufficient in the judgment of some
judicial authority ; that he may have the benefit of a writ of habeas corpus,
and thus obtain his release, if wrongfully confined ; and that he may at
any time be discharged from his recognizance, or his confinement, and
restored to his former liberty and rights, on the order of the proper judi-
cial authority, if it shall see sufficient cause.
204 REPORT OF 1799.
All these principles of the only preventive justice known to American
jurisprudence are violated by the alien-act. The ground of suspicion is
to be judged of, not by any judicial authority, but by the executive magis-
trate alone; no oath or affirmation is required; if the suspicion be held
reasonable by the President, he may order the suspected alien to depart
the territory of the United States, without the opportunity of avoiding the
sentence, by finding pledges for his future good conduct ; as the President
may limit the time of departure as he pleases, the benefit of the writ of
habeas corpus may be suspended with respect to the party, although the
Constitution ordains, that it shall not be suspended, unless when the pub-
lic safety may require it in case of rebellion or invasion, neither of which
existed at .the passage of the act ; and the party being under the sentence
of the President, either removed from the United States, or being punished
by imprisonment, or disqualification ever to become a citizen on convic-
tion of not obeying the order of removal, he cannot be discharged from
the proceedings against him, and restored to the benefits of his former
situation, ^although the highest judicial authority should see the most
sufficient cause for it.
But, in the last place, it can never be admitted, that the removal of
aliens, authorized by the act, is to be considered, not as punishment for
an offence, but as a measure of precaution and prevention. If the banish-
ment of an alien from a country into which he has been invited, as the
asylum most auspicious to his happiness; a country where he may have
formed the most tender of connexions, where he may have vested his en-
tire property, and acquired property of the real and permanent, as well as
the movable and temporary kind ; where he enjoys under the laws a
greater share of the blessings of personal- security and personal liberty
than he can elsewhere hope for, and where he may have nearly completed
his probationary title to citizenship; if, moreover, in the execution of the
sentence against him, he is to be exposed, not only to the ordinary dan-
gers of the sea, but to the peculiar casualties incident to a crisis of war,
and of unusual licentiousness on that element, and possibly to vindictive
purposes which his emigration itself may have provoked; if a banishment
of this sort be not a punishment, and among the severest of punishments,
it will be difficult to imagine a doom to which the name can be applied.
And if it be a punishment, it will remain to be inquired, whether it can be
constitutionally inflicted, on mere suspicion, by the single will of the
executive magistrate, on persons convicted of no personal offence against
the laws of the land, nor involved in any offence against the law of na-
tions, charged on the foreign state of which they are members.
One argument offered in justification of this power exercised over aliens
is, that the admission of them into the country being of favour, not of
right, the favour is at all times revocable.
To this argument it might be answered, that allowing the truth of the
inference, it would be no proof of what is required. A question would
still occur, whether the Constitution had vested the discretionary power of
admitting aliens in the federal government, or in the state governments.
But it cannot be a true inference, that because the admission of an alien
is a favour, the favour may be revoked at pleasure. A grant of land to
REPORT OF 1799. 205 .
an individual may be of favour, not of right ; but the moment the grant is
made, the favour becomes a right, and must be forfeited before it can be
taken away. To pardon a malefactor may be favour, but the pardon is
not, on that account, the less irrevocable. To admit an alien to naturali-
zation is as much a favour, as to admit him to reside in the country ; yet
it cannot be pretended, that a person naturalized can be deprived of the
benefit, any more than a native citizen can be disfranchised.*
Again, it is said, that aliens not being parties to the Constitution, the
rights and privileges which it secures cannot be at all claimed by them.
To this reasoning, also, it might be answered, that although aliens ar
not parties to the Constitution, it does not follow that the Constitution has
vested in Congress an absolute power over them. The parties to the Con-
stitution may have granted, or retained, or modified the power over aliens,
without regard to that particular consideration.
But a more direct reply is, that it does not follow, because aliens are
not parties to the Constitution's citizens are parties to it, that whilst they
actually conform to it, they have no right to its protection. Aliens are
not more parties to the laws, than they are parties to the Constitution ;
yet, it will not be disputeo 1 , that as they owe, on one hand, a temporary
obedience, they are entitled in return to their protection and advantage.
If aliens had no rights under the Constitution, they might not only be
banished, but even capitally punished, without a jury or the other inci-
dents to a fair trial. But so far has a contrary principle been carried, in
every part of the United States, that except on charges of treason, an alien
has, besides all the common privileges, the special one of being tried by a
jury, of which one-half may be also aliens.
It is said, further, that by the law and practice of nations, aliens may
be removed at discretion, for offences against the law of nations; that
Congress are authorized to define and punish such offences ; and that to
be dangerous to the peace of society is, in aliens, one of those offences.
The distinction between alien enemies and alien friends, is a clear and
conclusive answer to this argument. Alien enemies are under the law of
nations, and liable to be punished for offences against it. Alien friends,
except in the single case of public ministers, are under the municipal law,
and must be tried and punished according to that law only.
This argument also, by referring the alien-act to the power of Con-
gress to define and punish offences against the law of nations, yields the
point that the act is of a penal, not merely of a preventive operation. It
must, in truth, be so considered. And if it be a penal act, the punishment
it inflicts, must be justified by some offence that deserves it.
Offences for which aliens, within the jurisdiction of a country, are
* This argument, extending as it does, to governments of general, as well as to
those of specified powers, is pressed too far. A state may prescribe what conditions
it will to the admission of aliens, and amongst others, the condition which, indeed,
may well be understood as implied, of dismissal when their presence becomes disa-
greeable. (Vattel, B. II. 94, 100, and 101.) Whether the power to prescribe condi-
tions has been-conferred, in our system, upon the federal or the state governments, or
upon neither, is a different question.
t As to aliens domiciled in a foreign country, see Vatt. B. I., 213. As to aliens
merely sojourning temporarily, see ib. B. II., 102.
206 REPORT OF 1799.
punishable, are first, offences committed by the nation of which they make
a part, and in whose offences they are involved : Secondly, offences com-
mitted by themselves alone, without any charge against the nation to
which they belong. The first is the case of alien enemies ; the second,
the case of alien friends. In the first case, the offending nation can no
otherwise be punished than by war, one of the laws of which authorizes
the expulsion of such of its members, as may be found within the country,
against which the offence has been committed. In the second case, the
offence being committed by the individual, not by his nation, and against
tfce municipal law, not against the law of nations, the individual only, and
not the nation, is punishable; and the punishment must be conducted
according to the municipal law, not according to the law of nations. Un-
der this view of the subject, the act of Congress, for the removal of alien
enemies, being conformable to the law of nations, is justified by the Con-
stitution : and the " act," for the removal of alien friends, being repugnant
to the constitutional principles of municipal law, is unjustifiable.
Nor is the act of Congress, for the removal of alien friends, more agree-
able to the general practice of nations, than it is within the purview of the
law of nations. The general practice of nations,- distinguishes between
alien friends and alien enemies. The latter it has proceeded against,
according to the law of nations, by expelling them as enemies.* The
former it has considered as under a local and temporary allegiance,
and entitled to a correspondent protection. If contrary instances are
to be found in barbarous countries, under undefined prerogatives, or
amid revolutionary dangers, they will not be deemed fit precedents for
the government of the United States, even if not beyond its constitu-
tional authority.
It is said, that Congress may grant letters of marque and reprisal ; that
reprisals may be made on persons, as well as property ; and that the
removal of aliens may be considered as the exercise in an inferior degree,
of the general power of reprisal on persons.
Without entering minutely into a question that does not seem to require
it, it may be remarked, that reprisal is a seizure of foreign persons or
property, with a view to obtain that justice for injuries done by one state
or its members, to another state or its members, for which, a refusal of
the aggressor requires such a resort to force under the law of nations. It
must be considered as an abuse of words to call the removal of persons
from a country, a seizure or reprisal on them: nor is the distinction to be
overlooked between reprisals on persons within the country and under the
faith of its laws, and on persons out of the country.^
But, laying aside these considerations, it is evidently impossible to bring
* Vatt. B. III., 63.
t The idea that reprisals cannot lawfully be made upon persons, or property within
the country, and under the faith of its laws, is plainly not necessary to the argument.
The proposition that such reprisals are inadmissible is sustained by the authority of
Vattel (B. II., 344, and B. III., 63,) and others, and is certainly conformable to the
general usage of nations. If a state chooses, however, to adopt a less liberal policy,
it cannot, for so doing, be reproached with the violation of any priaciple of inter-
national law. (See Martens' Summ. B. VIII., c. ii., 5. The Boedes-Lust, 5 Rob.
Adm'y Rep. 246. Brown v. United States, 8 Cranch, 121.)
REPORT OF 1799. 207
the alien-act within the power of granting reprisals ; since it does not
allege or imply any injury received from any particular nation, for which
this proceeding against its members was intended as a reparation. The
proceeding is authorized against aliens of every nation; of nations charged
neither with any similar proceeding against American citizens, nor with
any injuries for which justice might be sought, in the mode prescribed by
the act. Were it true, therefore, that good causes existed for reprisals
against one or more foreign nations, and that neither persons nor property
of its members, under the faith of our laws, could plead an exemption, the
operation of the act ought to have been limited to the aliens among us,
belonging to such nations. To license reprisals against all nations, for
aggressions charged on one only, would be a measure as contrary to every
principle of justice and public law, as to a wise policy, and the universal
practice of nations.
It is said, that the right of removing aliens is an incident to the power
of war, vested in Congress by the Constitution.
This is a former argument in a new shape only; and is answered by re-
peating, that the removal of alien enemies is an incident to the power of war ;
that the removal of alien friends, is not an incident to the power of war.
It is said, that Congress are by the Constitution to protect each state
against invasion ; and that the means of 'preventing invasion are included
in the power o protection against it.
The power of war in general, having been before granted by the Con-
stitution, this clause must either be a mere specification for greater caution
and certainty, of which there are other examples in the instrument, or be
the injunction of a duty, superadded to a grant of the power. Under either
explanation, it cannot enlarge the powers of Congress on the subject. The
power and the duty to protect each state against an invading enemy, would
be /he same under the general power, if this regard to greater caution had
been omitted.
Invasion is an operation of war. To protect against invasion is an
exercise of the power of war. A power, therefore, not incident to war,
cannot be incident to a particular modification of war. And as the removal
of alien friends, has appeared to be no incident to a general state of war,
it cannot be incident to a partial state, or a particular modification of
war.
Nor can it ever be granted, that a power to act on a case when it actu-
ally occurs, includes a power over all the means that may tend to prevent
the occurrence of the case. Such a latitude of construction would render
unavailing every practicable definition of particular and limited powers.
Under the idea of preventing war in general, as well as invasion in par-
ticular, not only an indiscriminate removal of all aliens might be .enforced,
but a thousand other things still more remote from the operations and
precautions appurtenant to war, might take place. A bigoted or tyran-
nical nation might threaten us with war, unless certain religious or politi-
cal regulations were adopted by us; yet it never could be inferred, if the
regulations which would prevent war, were such as Congress had other-
wise no power to make, that the power to make them would grow out of
the purpose they were to answer. Congress have power to suppress in-
208 REPORT OF 1799.
surrections, yet it wotild not be allowed to follow, that they might employ
all the means tending to prevent them ; of which a system of moral in-
struction for the ignorant, and of provident support for the poor, might be
regarded as among the most efficacious.
One argument for the power of the general government to remove
aliens, would have been passed in silence, if it had appeared under any
authority inferior to that of a report^ made during the last session of
Congress, to the House of Representatives by a committee, and approved
by the House. The doctrine on which this argument is founded, is of so
new and so extraordinary a character, and strikes so radically at the
political system of America, that it is proper to state it in the very words
of the report.
" The act [concerning aliens] is said to be unconstitutional, because to
remove aliens is a direct breach of the Constitution, which provides, by the
9th section of the 1st article, that the migration or importation of such
persons as any of the states shall think proper to admit, shall not be pro-
hibited by the Congress, prior to the year 1808."
Among the answers given to this objection to the constitutionality of the
act, the following very remarkable one is extracted :
"Thirdly, that as the Constitution has given to the states no power to re-
move aliens, during the period of the limitation under consideration, in
the mean time, on the construction assumed, there would be no authority
in the country, empowered to send away dangerous aliens, which cannot
be admitted."*
The reasoning here used, would not in any view, be conclusive ; be-
cause there are powers exercised by most other governments, which in
the United States are withheld by the people, both from the general go-
vernment, and from the state governments. Of this sort are many of the
powers prohibited by the declarations of right prefixed to the constitutions,
or by the clauses in the constitutions, in the nature of such declarations.
Nay, so far is the political system of the United States distinguishable from
that of other countries, by the caution with which powers are delegated and
defined, that in one very important case, even of commercial regulations
and revenue, the power is absolutely locked up against the hands of both
governments. A tax on exports can be laid by no constitutional authority
whatever. Under a system thus, peculiarly guarded, there could surely
be no absurdity in supposing, that alien friends, who if guilty of treason-
able machinations may be punished, or if suspected on probable grounds,
may be secured by pledges or imprisonment, in like manner with perma-
nent citizens, were never meant to be subjected to banishment by any
arbitrary and unusual process, either under the one government or the
other. t
But, it is not the inconclusiveness of the general reasoning in this pas-
sage, which chiefly calls the attention to it. It is the principle assumed
by it, that the powers held by the states, are given to them by the Consti-
* The argument contained in the report here referred to, (which may be seen 20 Am.
State Papers, 181), in vindication of the constitutionality of the alien and sedition laws,
is condensed, but able. It will repay the perusal of the diligent student, who desire*
audire et alterant partem.
REPORT OF 1799. 209
tution of the United States ; and the inference from this principle, that
the powers supposed to be necessary which are not so given to state go-
vernments, must reside in the government of the United States.
The respect, which is felt for every portion of the constituted authorities,
forbids some of the reflections which this singular paragraph might excite ;
and they are the more readily suppressed, as it may be presumed, with
justice perhaps, as well as candour, that inadvertence may have had its
share in the error. It would be an unjustifiable delicacy, nevertheless,
to pass by so portentous a claim, proceed ing- from so high an authority,
without a monitory notice of the fatal tendencies with which it would be
pregnant.
Lastly, it is said, that a law on the same subject with the alien-act, passed
by this state originally in 1785, and re-enacted in 1792, is a proof that
a summary removal of suspected aliens, was not heretofore regarded by
the Virginia Legislature, as liable to the objections now urged against such
a measure.
This charge against Virginia vanishes before the simple remark, that
the law of Virginia relates to " suspicious persons being the subjects of
any foreign power or state, who shall have made a declaration of war, or
actually commenced hostilities, or from whom the President shall appre-
hend hostile designs ;" whereas the act of Congress relates to aliens,
being the subjects of foreign powers and states, who have neither de-
clared war, nor commenced hostilities, nor from whom hostile designs are
apprehended.
2. It is next affirmed of the alien act, that it unites legislative, judicial,
and executive powers in the hands of the President.
However difficult it may be to mark, in every case, with clearness and
certainty, the line which divides legislative power, from the other depart-
ments of power, all will agree, that the powers referred to these depart-
ments may be so general and undefined, as to be of a legislative, not of
an executive or judicial nature; and may for that reason be unconstitu-
tional. Details to a certain degree, are essential to the nature and cha-
racter of a law ; and on criminal subjects, it is proper, that details should
leave as little as possible to the discretion of those who are to apply and
to execute the law. If nothing more were required, in exercising a legis-
lative trust, than a general conveyance of authority, without laying down
any precise rules, by which the authority conveyed should be carried
into effect ; it would follow, that the whole power of legislation might be
transferred by the legislature from itself, and proclamations might become
substitutes for laws. A delegation of power in this latitude, would not be
denied to be a union of the different powers.
To determine, then, whether the appropriate powers of the distinct de-
partments are united by the act authorizing the executive to remove aliens,
it must be inquired whether it contains such details, definitions and rules,
as appertain to the t true character of a law; especially, a law by which
personal liberty is invaded, property deprived of its value to the owner,
and life itself indirectly exposed to danger.
The alien-act declares, "that it shall be lawful for the President to order
all such aliens as he shall judge dangerous to the peace and safety of the
210 REPORT OP 1799.
United States, or shall have reasonable ground to suspect, are concerned
in any treasonable, or secret machinations, against the government thereof,
to depart," &c.
Could a power be well given in terms less definite, less particular, and
less precise? To be dangerous to the public safety; to be suspected of
secret machinations against the government : these can never be mistaken
for legal rules or certain definitions. They leave everything to the
President. His will is the law.
But, it is not a legislative power only, that is given to the President.
He is to stand in the place of the judiciary also. His suspicion is the only
evidence which is to convict : his order, the only judgment which is to be
executed.
Thus, it is the President whose will is to designate the offensive con-
duct ; it is his will that is to ascertain the individuals on whom it is
charged ; and it is his will, that is to cause the sentence to be executed.
It is rightly affirmed, therefore, that the act unites legislative and judicial
powers to those of the executive.
3. It is affirmed, that this union of power subverts the general princi-
ples of free government.
It has become an axiom in the science of government, that a separation
of the legislative, executive, and judicial departments, is necessary to the
preservation of public liberty.* Nowhere has this axiom been better
understood in theory, or more carefully pursued in practice, than in the
United States.
4. It is affirmed that such a union of powers subverts the particular
organization and positive provisions of the Federal Constitution.
According to the particular organization of the Constitution, its legisla-
tive powers are vested in the Congress, its executive powers in the Presi-
dent, and its judicial powers in a supreme and inferior tribunals. The
union of any two of these powers, and still more of all three, in any one
of these departments, as has been shown to be done by the alien-act, must
consequently subvert the constitutional organization of them.
That positive provisions, in the Constitution, securing to individuals the
benefits of fair trial, are also violated by the union of powers in the alien-
act, necessarily results from the two facts, that the act relates to alien
friends, and that alien friends being under the municipal law only, are
entitled to its protection.
II. The second object against which the resolution protests, is the sedi-
tion-act.
Of this act it is affirmed, 1. That it exercises in like manner a power
not delegated by the Constitution. 2. That the power, on the contrary,
is expressly and positively forbidden by one of the amendments to the
Constitution. 3. That this is a power, which more than any other ought to
produce universal alarm; because it is levelled against that right of freely
examining public characters and measures, and of free communication
thereon, which has ever been justly deemed the only effectual guardian of
every other right.
* Montesq. Sp. Law. B. XI. c. 6.
REPORT OF 1799. 811
1. That it exercises a power not delegated by the Constitution.
Here again, it will be proper to recollect, that the Federal Government
being composed of powers specifically granted, with a reservation of all
others to the states or to the people, the positive authority under which the
sedition-act could be passed must be produced by those who assert its con-
stitutionality. In what part of the Constitution, then, is this authority to
be found ?
Several attempts have been made to answer this question, which will
be examined in their order. The committee will begin with one, which
has filled them with equal astonishment and apprehension; and which,
they cannot but persuade themselves, must have the same effect on all,
who will consider it with coolness and impartiality, and with a reverence
for our Constitution, in the true character in which it issued from the
sovereign authority of the people. The committee* refer to the doctrine
lately advanced as a sanction to the sedition-act, " that the common or un-
written law," a law of vast extent and complexity, and embracing almost
every possible subject of legislation, both civil and criminal, makes a part
of the law of these states, in their united and national capacity.*
The novelty and, in the judgment of the committee, the extravagance
of this pretension, would have consigned it to the silence in which they
have passed by other arguments, which an extraordinary zeal for the act
has drawn into the discussion : But the auspices under which this inno-
vation presents itself, have constrained the committee to bestow on it an
attention, which other considerations might have forbidden.
In executing the task, it may be of use to look back to the colonial
state of this country, prior to the Revolution; to trace the effects of the
Revolution which converted the colonies into independent states ; to inquire
into the import of the articles of confederation, the first instrument by
which the union of the states was regularly established ; and finally, to
consult the Constitution of 1788, which is the oracle that must decide the
important question.
In the state, prior to the Revolution, it is certain that the common law,
under different limitations, made a part of the colonial codes. But whether
it be understood that the original colonists brought the law with them, or
made it their law by adoption ; it is equally certain, that it was the sepa-
rate law of each colony within its respective limits, and was unknown
to them, as a law pervading -and operating through the whole, as one
society.
It could not possibly be otherwise. The common law was not the same
in any two of the colonies ; in some, the modifications were materially
and extensively different. There was no common legislature, by which a
common will could be expressed in the form of a law ; nor any common
magistracy, by which such a law could be carried into practice. The
will of each colony, alone and separately, had its organs for these pur-
* The argument that the sedition-act was justified by the common law, and that the
common law is part of the law of the Federal Government, is stated at length by Mr.
George K. Taylor, in the debate on the resolutions, Ante, p. 133, et seq. See, also, 1
Tuck. Bl. Part I. Appendix, p. 378, n. .
212 REPORT OP 1799.
This stage of our political history furnishes no foothold for the patrons
of this new doctrine.
Did then the principle or operation of the great event which made the
colonies independent states, imply or introduce the common law as a law
of the Union ?
The fundamental principle of the Revolution was, that the colonies were
co-ordinate members with each other, and with Great Britain, of an em-
.pire, united by a common executive sovereign, but not united by any com-
mon legislative sovereign. The legislative power was maintained to be as
complete in each American parliament, as in the British parliament. And
the royal prerogative was in force in each colony, by virtue of its ac-
knowledging the king for its executive magistrate, as it was in Great
Britain, by virtue of# like acknowledgment there. A denial of these
principles by Great Britain, and the assertion of them by America, pro-
duced the Revolution.
There was a time, indeed, when an exception to the legislative separa-
tion of the several component and coequal parts of the empire obtained a
degree of acquiescence. The British parliament was allowed to regulate
the trade with foreign nations, and between the different parts of the em-
pire. This was, however, mere practice without right, and contrary to
the true theory of the Constitution. The conveniency of some regulations,
in both those cases, was apparent ; and as there was no legislature with
power over the whole, nor any constitutional pre-eminence among the
legislatures of the several parts, it was natural for the legislature of that
particular part which was the eldest and the largest, to assume this func-
tion, and for the others to acquiesce in it. This tacit arrangement was
the less criticised, as the regulations established by the British parliament
operated in favour of that part of the empire which seemed to bear the
principal share of the public burdens, and were regarded as an indemnifi-
cation of its advances for the other parts. As long as this regulating
power was confined to the two objects of conveniency and equity, it was
not complained of, nor much inquired into. But, no sooner was it per-
verted to the selfish views of the party assuming it, than the injured parties
began to feel and to reflect ; and the moment the claim to a direct and
indefinite power was ingrafted on the precedent of the regulating power,
the whole charm was dissolved, and every eye opened to the usurpation.
The assertion by Great Britain of a power to make laws for the other
members of the empire in all cases whatsoever , ended in. the discovery
that she had a right to make laws for them in no cases whatsoever.
Such being the ground of our Revolution, no support nor colour can be
drawn from it, for the doctrine that the common law is binding on these
states as one society. The doctrine, on the contrary, is evidently repug-
nant to the fundamental principle of the Revolution.
The articles of confederation are the next source of information on this
subject.
In the interval between the commencement of the Revolution and the
final ratification of these articles, the nature and extent of the Union was
determined by the circumstances .of the crisis, rather than by any accu-
rate delineation of the general authority. It will not be alleged, that the
REPORT OP 1799. 213
" common law" could have had any legitimate birth as a law of the United
States during that stale of things. If 'it came, as such, into existence at
all, the charter of confederation must have been its parent.
Here again, however, its pretensions are absolutely destitute of founda-
tion. This instrument does not contain a sentence or syllable that can be
tortured into a countenance of the idea, that the parties to it were, with
respect to the objects of the common law, to form one community. No
such law is named or implied, or alluded to as being in force, or as
brought into force by that compact. No provision is made by which such
a law could be carried into operation ; whilst, on the other hand, every
such inference or pretext is absolutely precluded by Article 2d, which
declares, " that each state retains its sovereignty, freedom, and indepen-
dence, and every power, jurisdiction, and right, which is not by this con-
federation expressly delegated to the United States, in Congress assem-
bled."
Thus far it appears that not a vestige of this extraordinary doctrine
can be found in the origin or progress of American institutions. The
evidence against it has, on the contrary, grown stronger at every step,
till it has amounted to a formal and positive exclusion, by written articles
of compact among the parties concerned.
Is this exclusion revoked, and the common law introduced as a national
law, by the present Constitution of the United States ? This is the final
question to" be examined.
It is readily admitted, that particular parts of the common law may
have a sanction from the Constitution, so far as they are necessarily
comprehended in the technical phrases which express the powers delegated
to the government; and so far also, as such other parts may be adopted
by Congress as necessary and proper for carrying into execution the
powers expressly delegated. But, the question does not relate to either
of these portions of the common law. It relates to the common law be-
yond these limitations.
The only part of the Constitution which seems to have been relied on
in this case is the 2d Sect, of Art. III. " The judicial power shall extend
to all cases in law and equity, arising under this Constitution, the laws
of the United States, and treaties made or which shall be made under
their authority."
It has been asked what cases, distinct from those arising under the laws
and treaties of the United States, can arise under the Constitution, -other
than those arising under the common law ; and it is inferred, that the
common law is accordingly adopted or recognised by the Constitution.
Never, perhaps, was so broad a construction applied to a text so clearly
unsusceptible of it. If any colour for the inference could be found, it
must be in the impossibility of finding any other cases in law and equity,
within the provision of the Constitution, to satisfy the expression ; and
rather than resort to a construction affecting so essentially the whole cha-
racter of the government, it would perhaps be more rational to consider
the expression as a mere pleonasm, or inadvertence. But, it is not neces-
sary to decide on such a dilemma. The expression is fully satisfied, and
its accuracy justified, by two descriptions of cases, to which the judicial
214 REPORT OF 1799.
authority is extended, and neither of which implies that the common law
is the law of the United States. One of these descriptions comprehends
the cases growing out of the restrictions on the legislative power of the
states. For example, it is provided that " no state shall emit bills of
credit," or " make anything but gold and silver coin a tender in payment
of debts." Should this prohibition be violated, and a suit between citizens
of the same state be the consequence, this would be a case arising under
the Constitution, before the judicial power of the United States. A second
description comprehends suits between citizens and foreigners, or citizens
of different states, to be decided according to the state or foreign laws ; but
submitted by the Constitution to the judicial power of the United States ;
the judicial power being, in several instances, extended beyond the legisla-
tive power of the United States.
To this explanation of the text, the following observations may be
added :
The expression, "cases in law and equity," is manifestly confined to
cases of a civil nature ; and would exclude cases of criminal jurisdiction.
Criminal cases in law and equity would be a language unknown to the
law.*
The succeeding paragraph of the same section is in harmony with this
construction. It is in these words : " In all cases affecting ambassadors,
other public ministers, and consuls, and those in which a state shall be a
party, the Supreme Court shall have original jurisdiction. In all. the
other cases [including cases in law and equity arising under the Constitu-
tion] the Supreme Court shall have appellate jurisdiction both as to law
and fact; with such exceptions, and under such regulations, as Congress
shall make."
This paragraph, by expressly giving an appellate jurisdiction, in
cases of law and equity arising under the Constitution, to fact, as well
as to law, clearly excludes criminal cases, where the trial by jury is
secured ; because the fact, in such cases, is not a subject of appea4.f
And, although the appeal is liable to such exceptions and regulations
as Congress may adopt, yet it is not to be supposed that an exception
of all criminal cases could be contemplated ; as well because a discretion
in Congress to make or omit the exception would be improper, as because
* The phrase " cases in law and equity" undoubtedly means cases in law, and cases
in equity, and both were made cognizable by the federal judiciary. Whilst, then, there
cannot be criminal cases in equity, as the text observes, there may be criminal cases
at law, and so the expression in question would include such cases. The reasoning- is
not much aided by this observation of the text. It is fortunately strong enough with,
out it.
t If this mode of argument were correct, it would in like manner exclude all cases
at ZOMJ, as well of a civil as a criminal nature, for the seventh amendment to the
Constitution secures trial by jury in the former, as it had already been secured
in the latter, and further declares, that no fact tried by a jury shall be otherwise re-
examined in any court of the United States, than according to the rules of the com-
mon law. The general argument to prove that the common law is no part of the law
of the Federal Government is irrefutable, but the conclusion is not helped by the
inferences attempted to be drawn from the phrase " cases in law and equity."
REPORT OF 1799. 215
it would have been unnecessary. The exception could as easily have
been made by the Constitution itself, as referred to the Congress.
Once more; the amendment last added to the Constitution, deserves at-
tention, as throwing light on this subject. " The judicial power of the
United Stales shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States, by citizens of
another state, or by citizens or subjects of any foreign power." As it will
not be pretended that any criminal proceeding could Jake place against a
state, the terms law or equity, must be understood as appropriate to civil,
in exclusion of cr.iminal cases.
From these considerations, it is evident, that this part of the Constitu-
tion, even if it could be applied at all to the purpose for which it has been
cited, would not include any cases whatever of a criminal nature ; and
consequently, would not anthorize the inference from it, that the judicial
authority extends to offences against the common law, as offences arising
under the Constitution.
It is further to be considered, that even if this part of the Constitution
could be strained into an application to every common law case, criminal
as well as civil, it could have no effect in justifying the sedition-act,
which is an exercise of legislative, and not of judicial power: and it is
the judicial power only, of which the extent is defined in this part of the
Constitution.
There are two passages in the Constitution, in which a description of
the law of the United States is found. The first is contained in Art. III.
sect. 2, in the words following : " This Constitution, the laws of the United
States, and treaties made, or which shall be made under their authority."
The second is contained in the second paragraph of Art. VI. as follows :
" This Constitution, and the laws of the United States which shall be made
in pursuance thereof, and all treaties made, or'which shall be made, under
the authority of the United States, shall be the supreme law of the land."
The first of these descriptions was meant as a guide to the judges of the
United States ; the second, as a guide to the judges in the several states.
Both of them consists of an enumeration, which was evidently meant to
be precise and complete. If the common law had been understood to be
a law of the United States, it is not possible to assign a satisfactory reason
why it was not expressed in the enumeration.
In aid of these objections, the difficulties and confusion inseparable
from a constructive introduction of the common law, would afford power-
ful reasons against it.
Is it to be the common law with or without the British statutes 1
If without the statutory amendments, the vices of the code -would be
insupportable.
Tf with these amendments, what period is to be fixed for limiting the
British authority over our laws?
Is it to be the date of the eldest or the youngest of the colonies?
Or are the dates to be thrown together, and a medium deduced?
Or is our independence to be taken for the date?
Is, again, regard to be had to the various changes in the common law
made by the local codes of America ?
216 REPORT OF 1799.
Is regard to be had to such changes, subsequent, as well as prior, to the
establishment of the Constitution ?
Is regard to be had to future, as well as past changes?
Is the law to be different in every state, as differently modified by
its code; or are the modifications of any particular state to be applied
to all ?
And on the latter supposition, which among the state codes would form
the standard 1
Questions of this sort might be multiplied with as much ease, as there
would be difficulty in answering them.
The consequences flowing from the proposed construction, furnish other
objections equally conclusive ; unless the text were peremptory in its mean-
ing, and consistent with other parts of the instrument.
These consequences may be in relation to the legislative authority of
the United States ; to the executive authority ; to the judicial authority ;
and to the governments of the several states.
If it be understood, that the common law is established by the Constitu-
tion, it follows that no part of the law can be altered by the legislature ;
such of the statutes already passed, as may be repugnant thereto would
be nullified ; particularly the " sedition-act" itself, which boasts of being
a, melioration of the common law ; and the whole code, with all its incon-
gruities, barbarisms, and bloody maxims, would be inviolably saddled on
the good people of the United States.
Should this consequence be rejected, and the common law be held, like
other laws, liable to revision and alteration, by the authority of Congress,
it then follows, that the authority of Congress is co-extensive with the
objects of common law ; that is to say, with every object of legislation :
for to every such object does some branch or other of the common law
extend. The authority of Congress would, therefore, be no longer under
the limitations marked out in the Constitution. They would be authorized
to legislate in all cases whatsoever.
In the next place, as the President possesses the executive powers of
the Constitution, and is to see that the laws be faithfully executed, his
authority also must be coextensive with every branch of the common
law. The additions which this would make to his power, though not
readily to be estimated, claim the most serious attention.
This is not all ; it will merit the most profound consideration, how far
an indefinite admission of the common law, with a latitude in construing
it, equal to the construction by which it is deduced from the Constitution,
might draw after it the various prerogatives making part of the unwritten
law of England. The English constitution itself is nothing more than a
composition of unwritten laws and maxims.
In the third place, whether the common law be admitted as of legal or
of constitutional obligation, it would confer on the judicial department a
discretion little short of a legislative power.
On the supposition of its having a constitutional obligation, this power
in the judges would be permanent and irremediable by the legislature.
On the other supposition, the power would not expire, until the legislature
should have introduced a full system of statutory provisions. Let it be
REPORT OP 1799. 217
observed, too, that besides all the uncertainties above enumerated, and
which present an immense field for judicial discretion, it would remain
with the same department to decide what parts of the common law would,
and what would not, be properly applicable to the circumstances of the
United States.
A discretion of this sort has always, been lamented as incongruous and
dangerous, even in the colonial and siSite courts ; although so much nar-
rowed by positive provisions in the local codes on all the principal sub-
jects embraced by the common law. Under the United States, where so
few laws exist on those subjects, and where so great a lapse of time must
happen before the vast chasm could be supplied, it is manifest that the
power of the judges over the law would, in fact, erect them into legisla-
tors ; and that, for a long time, it would be impossible for the citizens to
conjecture, either what was, or would be law.
In the last place, the consequence of admitting the common law as the
law of the United States, on the authority of the individual states, is as
obvious as it would be fatal. As this law relates to every subject of
legislation, and would be paramount to the constitutions and laws of the
states, the admission of it would overwhelm /he residuary sovereignty of
the states, and by one constructive operation, new-model the whole politi-
cal fabric of the country.
From the review thus taken of the situation of the American colonies
prior to their independence ; of the effect of this event on their situation ;
of the nature and import of the articles of confederation.; of the true
meaning of the passage in the existing Constitution from which the com-
mon law has been deduced ; of the difficulties and uncertainties incident
to the doctrine; and of its vast consequences in extending the powers of
the Federal Government, and in superseding the authorities of the state
governments ; the committee feel the utmost confidence in concluding,
that the common law never was, nor, by any fair construction, ever can
be, deemed a law for the American people as one community ; and they
indulge the strongest expectation that the same conclusion will finally be
drawn, by all candid and accurate inquirers into the subject. It is indeed
distressing to reflect, that it ever should have been made a question,
whether the Constitution, on the whole face of which is seen so much
labour to enumerate and define the several objects of federal power, could
intend to introduce in the lump, in an indirect manner, and by a forced
construction of a few phrases, the vast and multifarious jurisdiction in-
volved in the common law ; a law filling so many ample volumes ; a law
overspreading the entire field of legislation ; and a law that would sap
the foundation of the Constitution as a system of limited and specified
powers. A severer reproach could not, in the opinion of the committee,
be thrown on the Constitution, on those who framed, or on those who
established it, than such a supposition would throw on them.
The argument, then, drawn from the common law, on the ground of
its being adopted or recognised by the Constitution, being inapplicable to
the sedition-act, the committee will proceed to examine the other argu-
ments which have been founded on the Constitution.
They will waste but little time on the attempt to cover the act by the
218 REPORT OP 1799.
preamble to the Constitution; it being contrary to every acknowledged
rule of construction, to set up this part of an instrument, in opposition to
the plain meaning expressed in the body of the instrument. A preamble
usually contains the general motives or reasons, for the particular regu-
lations or measures which follow it; and is always understood to be
explained and limited by them. In the present instance, a contrary inter-
pretation would have the inadmissible effect, of rendering nugatory or
improper every part of the Constitution which succeeds the preamble.
The paragraph in Art. I. sect. 8, which contains the power to lay and
collect taxes, duties, imposts, and excise ; to pay the debts, and provide for
the common defence and general welfare, having been already examined,
will also require no particular attention in this place. It will have been
seen that in its fair and consistent meaning, it cannot enlarge the enume-
rated powers vested in Congress.
The part of the Constitution which seems most to be recurred to, in
defence of the " sedition-act," is the last clause of the above section, em-
powering Congress "to make all laws which shall be necessary and proper
for carrying into execution the foregoing powers, and all other powers
vested by this Constitution in the government of the United Slates, or in
any department or officer thereof."
The plain import of this clause is, that Congress shall have all the inci-
dental or instrumental powers necessary and proper for carrying into
execution all the express powers ; whether they be vested in the go-
vernment of the United States, more collectively, or in the several de-
partments or officers thereof. It is not a grant of new powers to Congress,
but merely a declaration, for the removal of all uncertainty, that the
means of carrying into execution, those otherwise granted, are included
in the grant.
Whenever, therefore, a question arises concerning the constitutionality
of a particular power, the first question is, whether the power be expressed
in the Constitution. If it be, the question is decided. If it be not ex-
pressed, the next inquiry must be, whether it is properly an incident to an
express power, and necessary to its execution. If it be, it may be exer-
cised by Congress. If it be not, Congress cannot exercise it.
Let the question be asked, then, whether the power over the press, exer-
cised in the " sedition-act," be found among the powers expressly vested
in the Congress? This is not pretended.
Is there any express power, for executing which it is a necessary and
proper power ?
The power which has been selected, as least remote, in answer to this
question, is that of " suppressing insurrections;" which is said to imply a
power to prevent insurrections, by punishing whatever may lead or tend
to them. But, it surely cannot, with the least plausibility, be said, that a
regulation of the press, and a punishment of libels, are exercises of a
power to suppress insurrections. The most that could be said, would be,
that the punishment of libels, if it had the tendency ascribed to it, might
prevent the occasion of passing or executing laws necessary and proper
for the suppression of insurrections.
REPORT OF 1799. 219
Has the Federal Government no power, then, to prevent as well as to
punish resistance to. the laws ?
They have the power, which the Constitution deemed most proper, in
their hands for the purpose. The Congress has power before it happens,
to pass laws for punishing it ; and the executive and judiciary have power
to enforce those laws when it does happen.
It must be recollected by many, and could be shown to the satisfaction
of all, that the construction here put on the terms "necessary and proper," is
precisely the construction which prevailed during the discussions and ratifica-
tions of the Constitution. It may be added, and cannot too often be repeated,
that it is a construction absolutely necessary to maintain their consistency
with the peculiar character of the government, as possessed of particular
and defined powers only ; not of the general and indefinite powers vested
in ordinary governments. For, if the power to suppress insurrection,
includes a power to punish libels; or if the power to punish, includes a
power to prevent, by all the means that may have that tendency ; such is
the relation and influence among the most remote subjects of legislation,
that a power over a very few, would carry with it a power over all. And
it must be wholly immaterial, whether unlimited powers be exercised under
the name of unlimited powers, or be exercised under the name of unlimited
means of carrying into execution limited powers.
This branch of the subject will be closed with a reflection which must
have weight with all ; but more especially with those who place peculiar
reliance on the judicial exposition of the Constitution, as the bulwark
provided against undue extensions of the legislative power. If it be un-
derstood that the powers implied in the specified powers, have an imme-
diate and appropriate relation to them, as means, necessary and proper
for carrying them into execution, questions on the constitutionality of laws
passed for this purpose, will be of a nature sufficiently precise and deter-
minate for judicial cognizance and control ! If. on the other hand, Con-
gress are not limited in the choice of means by any such appropriate
relation of them to the specified powers ; but may employ all such means
as they may deem fitted to prevent, as well as to punish, crimes subjected
to their authority; such as may have a tendency only to promote an object
for which they are authorized to provide ; every one must perceive, that
questions relating to means of this sort, must be questions of mere
policy and expediency, on which legislative discretion alone can decide,
and from which the judicial interposition and control are completely
excluded.
2. The next point which the resolution requires to be proved, is, that
the power over the press exercised by the sedition-act, is positively forbid-
den by one of the amendments to the Constitution.
The amendment stands in these words " Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof, or abridging the freedom of speech or of the press; or the right of
the people peaceably to assemble, and to petition the government for a
redress of grievances."
In the attempts to vindicate the " sedition-act," it has been contended,
1. That the " freedom of the press" is to be determined by the meaning
220 REPORT OF 1799.
of these terms in the common law. 2. That the article supposes the
power over the press to be in Congress, and prohibits them only from
abridging the freedom allowed to it by the common law.
Although it will be shown, in examining the second of these posi-
tions, that the amendment is a denial to Congress of all power over the
press, it may not be useless to make the following observations on the first
of them.
It is deemed to be a sound opinion, that the sedition-act, in its defini-
tion of some of the crimes created, is an abridgment of the freedom of
publication, recognised by principles of the common law in England.
The freedom of the press under the common law, is, in the defences of
the sedition-act, made to consist in an exemption from all previous restraint
on printed publications, by persons authorized to inspect and prohibit
them. It appears to the committee, that this idea of the freedom of the
press, can never be admitted to be the American idea of it : since a law
inflicting penalties on printed publications, would have a similar effect
with a law authorizing a previous restraint on them. It would seem a
mockery to say, that no law should be passed, preventing publications
from being made, but that laws might be passed for punishing them in
case they should be made.
The essential difference between the British government, and the Ame-
rican constitutions, will place this subject in the clearest light.
In the British government, the danger of encroachments on the rights
of the people, is understood to be confined to the executive magistrate.
The representatives of the people in the legislature, are not only exempt
themselves, from distrust, but are considered as sufficient guardians of the
rights of their constituents against the danger from the executive. Hence
it is a principle, that the parliament is unlimited in its power; or, in their
own language, is omnipotent. Hence, too, all the ramparts for protecting
the rights of the people, such as their magna charta, their bill of rights,
&c., are not reared against the parliament, but against the royal preroga-
tive. They are merely legislative precautions against executive usurpa-
tions. Under such a government as this, an exemption of the press from
previous restraint by licensers appointed by the king, is all the freedom
that can be secured to it.
In the United States, the case is altogether different. The people, not
the government, possess the absolute sovereignty. The legislature, no
less than the executive, is under limitations of power. Encroachments
are regarded as possible from the one, as well as from the other. Hence,
in the United States, the great and essential rights of the people are
secured against legislative, as well as against executive ambition. They
are secured, not by laws paramount to prerogative, but by constitutions
paramount to laws. This security of the freedom of the press requires,
. that it should be exempt, not only from previous restraint by the execu-
tive, as in Great Britain, but from legislative restraint also; and this
exemption, to be effectual, must be an exemption not only from the pre-
vious inspection of licensers, but from the subsequent penalty of laws.
The state of the press, therefore, under the common law, cannot, in this
point of view, be the standard of its freedom in the United States.
REPORT OF 1799. 221
But there is another view, under which it may be necessary to consider
this subject. It may be alleged, that although the security for the free-
dom of the press, be different in Great Britain and in this country ; being
a legal security only in the former, and a constitutional security in the
latter ; and although there may be a further difference, in an extension of
the freedom of the press here, beyond an exemption from previous re-
straint, to an exemption from subsequent penalties also ; yet that the actual
legal freedom of the press, under the common law, must determine the
degree of freedom which is meant by the terms, and which is constitu-
tionally secured against both previous and subsequent restraints.
The committee are not unaware of the difficulty of all general ques-
tions, which may turn on the proper boundary between the liberty and
licentiousness of the press. They will leave it therefore for consideration
only, how far the difference between the nature of the British government,
and the nature of the American governments, and the practice under the
latter, may show the degree of rigour in the former to be inapplicable to,
and not obligatory in the latter.
The nature of governments elective, limited, and responsible, in all their
branches, may well be supposed to require a greater freedom of animad-
version than might be tolerated by the genius of such a government as
that of Great Britain. In the latter, it is a maxim, that the king, an
hereditary, not a responsible magistrate, can do no wrong; and that the
legislature, which in two-thirds of its composition, is also hereditary, not
responsible, can do what it pleases. In the United States, the executive
magistrates are not held to be infallible, nor the legislatures to be omnipo-
tent ; and both being elective, are both responsible. Is it not natural and
necessary, under such different circumstances, that a different degree of
freedom, in the use of the press, should be contemplated ?
Is not such an inference favoured by what is observable in Great Britain
itself? Notwithstanding the general doctrine of the common law, on the
subject -of the press, and the occasional punishment of those who use it
with a freedom offensive to the government; it is well known, that with
respect to the responsible members of the government, where the reasons
operating here, become applicable there, the freedom exercised by the
press, and protected by the public opinion, far exceeds the limits prescribed
by the ordinary rules of law. The ministry, who are responsible to im-
peachment, are at all times animadverted on, by the press, with peculiar
freedom ; and during the elections for the House of Commons, the other
responsible part of the government, the press is employed with as little
reserve towards the candidates.
The practice in America must be entitled to much more respect. In
every state, probably, in the Union, the press has exerted a freedom in
canvassing the merits and measures of public men, of every description,
which has not been confined- to the strict limits of the common law. On
this footing, the freedom of the press has stood ; on this footing it yet
stands. And it will not be a breach, either of truth or of candour, to say,
that no persons or presses are in the habit of more unrestrained animad-
versions on the proceedings and functionaries of the state governments,
than the persons and presses most zealous in vindicating the act of Con-
222 REPORT OF 1799.
gress for punishing similar animadversions on the government of the
United States.
The last remark will not be understood as claiming for the state govern-
ments an immunity greater than they have heretofore enjoyed. Some
degree of abuse is inseparable from the proper use of everything ; and in
no instance is this more true, than in that of the press. It has accord-
ingly been decided by the practice of the states, that it is better to leave a
few of its noxious branches to their luxuriant growth, than by pruning
them away, to injure the vigour of those yielding the proper fruits. And
can the wisdom of this policy be doubted by any who reflect, that to the
press alone, chequered as it is with abuses, the world is indebted for all
the triumphs which have been gained by reason and humanity, over error
and oppression ; who reflect, that to the same beneficent source, the United
States owe much of the lights which conducted them to the rank of a free
and independent nation ; and which have improved their political system
into a shape so 'auspicious to their happiness. Had " sedition-acts," for-
bidding every publication that might bring the constituted agents into con-
tempt or disrepute, or that might excite the hatred of the people against
the authors of unjust or pernicious measures, been uniformly enforced
against the press, might not the United States have been languishing at
this day, under the infirmities of a sickly confederation? Might they not
possibly be miserable colonies, groaning under a foreign yoke?
To these observations, one fact will be added, which demonstrates that
the common law canriot be admitted as the universal expositor of Ameri-
can terms, which may be the same with those contained in that law. The
freedom of conscience, and of religion, are found in the same instruments
which assert the freedom of the press. It will never be admitted, that the
meaning of the former, in the common law of England, is to limit their
meaning in the United Stales.
Whatever weight may be allowed to these considerations, the committee
do not, however, by any means intend to rest the question on them. They
contend that the article of amendment, instead of supposing in Congress a
power that might be exercised over the press, provided its freedom was
not abridged, was meant as a positive denial to Congress, of any power
whatever on the subject.
To demonstrate that this was the true object of the article, it will be
sufficient to recall the circumstances which led to it, and to refer to the
explanation accompanying the article.
When the Constitution was under the discussions which preceded its
ratification, it is well known, that great apprehensions were expressed by
many, lest the omission of some positive exception from the powers dele-
gated, of certain rights, and of the freedom of the press particularly, might
expose them to the danger of being drawn by construction within some of
the powers vested in Congress ; more especially of the power to make all
laws necessary and proper for carrying their other powers into execution.
In reply to this objection, it was invariably urged to be a fundamental and
characteristic principle of the Constitution, that all powers not given by
it, were reserved ; that no powers were given beyond those enumerated
in the Constitution, and such as were fairly incident to them; that the
REPORT OF 1799. 223
power over the rights in question, and particularly over the press, was
neither among the enumerated powers, nor incident to any of them ; and
consequently that an exercise of any such power, would be a manifest
usurpation. It is painful to remark, how much the arguments now em-
ployed in behalf of the sedition-act, are at variance with the reasoning
which then justified the Constitution, and invited its ratification.
From this posture of the subject, resulted the interesting question in so
many of the conventions, whether the doubts and dangers ascribed to the
Constitution, should be removed by any amendments previous to the rati-
fication, or be postponed, in confidence that as far as they might be proper,
they would be introduced in the form provided by the Constitution. The
latter course was adopted ,* and in most of the states, the ratifications were
followed by propositions and .instructions for rendering the Constitution
more explicit, and more safe to the rights not meant to be delegated by it.
Among those rights, the freedom of the press, in most instances, is parti-
cularly and emphatically mentioned. The firm and very pointed manner,
in which it is asserted in the proceedings of the convention of this state,
will be hereafter seen.
In pursuance of the wishes thus expressed, the first Congress that
assembled under the Constitution, proposed certain amendments which
have since, by the necessary ratifications, been made a part of it ; among
which amendments, is the article containing, among other prohibitions on
the Congress, an express declaration that they should make no law
abridging the freedom of the press.
Without tracing farther the evidence on this subject, it would seem
scarcely possible to doubt, that no power whatever over the press was
supposed to be delegated by the Constitution, as it originally stood ; and
that the amendment was intended as a positive and absolute reservation
of it.
But the evidence is still stronger. The proposition of amendment is
made by Congress, is introduced in the following terms : " The conven-
tions of a number of the states having at the time of their adopting the
Constitution expressed a desire, in order to prevent misconstructions or
abuse of its powers, that further declaratory and restrictive clauses should
be added ; and as extending the ground of public confidence in the govern-
ment, will best ensure the beneficent ends of its institutions"
Here is the most satisfactory and authentic proof, that the several
amendments proposed, were to be considered as either declaratory or
restrictive ; and whether the one or the other, as corresponding with the
desire expressed by a number of the states, and as extending the ground
of public confidence in the government.
Under any other construction of the amendment relating to the press,
than that it declared the press to be wholly exempt from the power of
Congress, the amendment could neither be said to correspond with the
desire expressed by a number of the states, nor be calculated to extend
the ground of public confidence in the government.
Nay more ; the construction employed to justify the " sedition-act,"
would exhibit a phenomenon, without a parallel in the political world. It
would exhibit a number of respectable states, as denying first that any
224 REPORT OF 1799.
power over the press was delegated by the Constitution ; as proposing
next, that an amendment to it, should explicitly declare that no such power
was delegated ; and finally, as concurring in an amendment actually re-
cognising or delegating such a power.
Is then the federal government, it will be asked, destitute of every
authority for restraining the licentiousness of the press, and for shielding
itself against the libellous attacks which may be made on those who ad-
minister it ?
The Constitution alone can answer this question. If no such power be
expressly delegated, and it be not both necessary and proper to carry into
execution an express power; above all, if it be expressly forbidden by a
declaratory amendment to the Constitution, the answer must be, that the
federal government is destitute of all such authority.
And might it not be asked in turn, whether it is not more probable,
under all the circumstances which have been reviewed, that the authority
should be. withheld by the Constitution, than that it should be left to a
vague and violent construction ; whilst so much pains were bestowed in
enumerating other powers, and so many less important powers are in-
cluded in the enumeration?
Might it not be likewise asked, whether the anxious circumspection
which dictated so many peculiar limitations on the general authority,
would be unlikely to exempt the press altogether from that authority?
The peculiar magnitude of some of the powers necessarily committed to
the federal government; the peculiar duration required for the functions
of some of its departments; the peculiar distance of the seat of its proceed-
ings from the great body of its constituents ; and the peculiar difficulty of
circulating an adequate knowledge of them through any other channel ;
will not these considerations, some or other of which produced other ex-
ceptions from the powers of ordinary governments, all together, account
for the policy of binding the hand of the federal government, from touch-
ing the channel which alone can give efficacy to its responsibility to its
constituents; and of leaving those who administer it, to a remedy for their
their injured reputations, under the same laws, and in the same tribunals,
which protect their lives, their liberties, and their properties ?
But the question does not turn either on the wisdom of the Constitution,
or on the policy which gave rise to its particular organization. It turns
on the actual meaning of the instrument ; by which, it has appeared, that
a power over the press is clearly excluded, from the number of powers
delegated to the federal government.
3. And in the opinion of the committee, well may it be said, as the
resolution concludes with saying, that the unconstitutional power exercised
over the press by the "sedition-act," ought "more than any other, to pro-
duce universal alarm ; because it is levelled against that right of freely
examining public characters and measures, and of free communication
among the people thereon, which has ever been justly deemed the only
effectual guardian of every other right."
Without scrutinizing minutely into all the provisions of the "sedition-
act," it will be sufficient to cite so much of section 2, as follows : " And
be it further enacted, that if any person shall write, print, utter, or publish,
REPORT OP 1799. 225
or shall cause or procure to be written, printed, uttered or published, or
shall knowingly and willingly assist or aid in writing, printing, uttering
or publishing any false, scandalous and malicious writing or writings
against the government of the United States, or either house of the Con-
gress of the United States, or the President of the United States, with an
intent to defame the said government , or either house of the said Congress,
or ike President^ or to bring them, or either of them, into contempt or dis-
repute; or to excite against them, or either, or any of them, the hatred of
tJie good people of the United States, fyc. TJien such person being thereof
convicted before^ any court of the United States, having jurisdiction thereof,
shall be punished by a fine not exceeding two thousand dollars, and by
imprisonment not exceeding two years."
On this part of the act, the following observations present themselves,:
1. The Constitution supposes that the President, the Congress, and
each of its houses may not discharge their trusts, either from defect of
judgment or other causes. Hence, they are all made responsible to their
constituents, at the returning periods of election ; and the President, who
is singly entrusted with very great powers, is, as a further guard, sub-
jected to an intermediate impeachment.
2. Should it happen, as the Constitution supposes it may happen, that
either of these branches of the government may not have duly discharged
its trust, it is natural and proper that, according to the cause and degree
of their faults, they should be brought into contempt or disrepute, and
incur the hatred of the people.
3. Whether it has, in any case, happened that the proceedings of
either, or all of those branches, evince such a violation of duty as to
justify a contempt, a disrepute or hatred among the people, can only be
determined by a free examination thereof, and a free communication
among the people thereon.
4. Whenever it may have actually happened, that proceedings of this
sort are chargeable on all or either of the branches of the government, it
is the duty as well as right of intelligent and faithful citizens, to discuss
and promulge them freely, as well to control them by the censorship of
the public opinion, as to promote a remedy according to the rules of the
Constitution. And it cannot be avoided, that those who are to apply the
remedy must feel, in some degree, a contempt or hatred against the trans-
gressing party.
5. As the act was passed on July 14, 1798, and is to be in force until
March 3, 1801, it was of course, that during its continuance, two elections
of the entire House of Representatives, an election of a part of the Senate,
and an election of a President, were to take place.
6. That consequently, during all these elections, intended by the Con-
stitution to preserve the purity, or to purge the faults of the administration,
the great remedial rights of the people were to be exercised, and the re-
sponsibility of their public agents to be screened, under the penalties of
this act.
May it not be asked of every intelligent friend to the liberties of his;
country, whether the power exercised in such an act as this, ought not to
produce greaj; and universal alarm ? Whether a rigid execution of such
226 REPORT OF 1799.
an act, in time past, would not have repressed that information and com-
munication among the people, which is indispensable to the just exercise
of their electoral rights? And whether such an act, if made perpetual,
and enforced with rigour, would not, in time to come, either destroy our
free system of government, or prepare a convulsion that might prove
equally fatal to it?
In answer to such questions, it has been pleaded that the writings and
publications forbidden by the act, are those only which are false and
malicious, and intended to defame ; and merit is claimed for the privilege
allowed to authors to justify, by proving the truth of their publications,
and for the limitations to which the sentence of fine and imprisonment is
subjected.
To those who concurred in the act, under the extraordinary belief that
the option lay between the passing of such an act, and leaving in force
the common law of libels, which -punishes truth equally with falsehood,
and submits the fine and imprisonment to the indefinite discretion of the
court, the merit of good intentions ought surely not to be refused. A like
merit may perhaps be due for the discontinuance of the corporal punish-
ment, which the common law also leaves to the discretion of the court.
This merit of intention, however, would have been greater, if the several
mitigations had not been limited to so short a period ; and the apparent
inconsistency would have been avoided, between justifying the act at one
time, by contrasting it with the rigors of the common law, otherwise in
force, and at another time by appealing to the nature of the crisis, as re-
quiring the temporary rigour exerted by the.act.
But, whatever may have been the meritorious intentions of all or any
who contributed to the sedition-act, a very few reflections will prove, that
its baneful tendency is little diminished by the privilege of giving in evi-
dence the truth of the matter contained in political writings.
In the first place, where simple and naked facts alone are in question,
there is sufficient difficulty in some cases, and sufficient trouble and vexa-
tion in all, of meeting a prosecution from the government, with the full
and formal proof necessary in a court of law.
But in the next place, it must be obvious to the plainest minds, that
opinions, and inferences, and conjectural observations, are not only in
many cases inseparable from the facts, but may often be more the objects
of the prosecution than the facts themselves ; or may even be altogether
abstracted from particular facts ; and that opinions and inferences, and con-
jectural observations, cannot be subjects of that kind of proof which ap-
pertains to facts, before a court of law.
Again : It is no less obvious, that the intent to defame or bring into
contempt or disrepute, or hatred, which is made a condition of the offence
created by the act, cannot prevent its pernicious influence on the freedom
of the press. For, omitting the inquiry, how far the malice of the intent
is an inference of the law from the mere publication, it is manifestly im-
possible to punish the intent to bring those who administer the government
into disrepute or contempt, without striking at the right of freely discussing
public characters and measures: because those who engage in such dis-
cussions, must expect and intend to excite these unfavourable sentiments,
REPORT OF 1709. 227
so far as they may be thought to be deserved. To prohibit, therefore, the
intent to excite those unfavourable sentiments against those who administer
the government, is equivalent to a prohibition of the actual excitement of
them ; and to prohibit the actual excitement of them, is equivalent to a
prohibition of discussions having that tendency and effect ; which, again,
is equivalent to a protection of those who administer the government, if
they should at any time deserve the contempt or hatred of the people,
against being exposed to it, by free animadversions on their characters
and conduct. Nor can there be a doubt, if those in public trust be shielded
by penal laws from such strictures of the press, as may expose them to
contempt or disrepute, or hatred, where they may deserve it, in exact pro-
portion as they may deserve to be exposed, will be the certainty and
criminality of the intent to expose them, and the vigilance of prosecuting
and punishing it ; nor a doubt, that a government thus intrenched in penal
statutes, against the just and natural effects of a culpable administration,
will easily evade the responsibility, which is essential to a faithful discharge
of its duty.
Let it be recollected, lastly, that the right of electing the members of
the government, constitutes more particularly the essence of a free and
responsible government. The value and efficacy of this right, depends on
the knowledge of the comparative merits and demerits of the candidates
for public trust ,* and on the equal freedom, consequently, of examining and
discussing these merits and demerits of the candidates respectively. It
has been seen, that a number of important elections will take place whilst
the act is in force, although it should not be continued beyond the term to
which it is limited. Should there happen, then, as is extremely probable
in relation to some or other of the branches of the government, to be com-
petitions between those who are, and those who are not, members of the
government, what will be the situations of the competitors? Not equal ;
because the characters of the former will be covered by the " sedition-act"
from animadversions exposing them to disrepute among the people ; whilst
the latter may be exposed to the contempt and hatred of the people, with-
out a violation of the act. What will be the situation of the people?
Not free ; because they will be compelled to make their election between
competitors, whose pretensions they are not permitted }- by the act, equally
to examine, to discuss, and to ascertain. And from both these situations,
will not those in power derive an undue advantage for continuing them-
selves in it ; which by impairing the right of election, endangers the
blessings of the government founded on it?
It is with justice, therefore, that the General Assembly have affirmed in
the resolution, as well that the right of freely examining public characters
and measures, and free communication thereon, is the only effectual
guardian of every other right, as that this particular right is levelled at,
by the power exercised in the " sedition-act."
The resolution next in order is as follows :
That this state having by its convention, which ratified the federal
Constitution, expressly declared, that among other essential rights, " the
liberty of conscience and of the press cannot be cancelled, abridged, re-
strained or modified by any authority of the United States" and from
228 REPORT OP 1799.
\
its extreme anxiety to guard these rights from every possible attack of so-
phistry and ambition, having, with other states, recommended an amend-
ment for that purpose, which amendment was, in due time, annexed to
the Constitution, it would mark a reproachful inconsistency, and crimi-
nal degeneracy, if an indifference were now shoicn to the most palpable
violation of one of the rights thus declared and secured; and the establish-
ment of a precedent, which may be fatal to the other.
To place this resolution in its just light, it will be necessary to recur to
the act of ratification by Virginia, which stands in the ensuing form :
We, the delegates of the people of Virginia, duly elected in pursuance
of a recommendation from the General Assembly, and now met in conven-
tion, having fully and freely investigated and discussed the proceedings
of the federal convention, and being prepared as well as the most mature
deliberation hath enabled us to decide thereon, do, in the name and in
behalf of the people of Virginia, declare and make knoivn, that the powers
granted under the Constitution, being derived from the people of the
United States, may be resumed by them, ivhensoever the same shall be
perverted to their injury or oppression ; and that every power not granted
thereby, remains with them, and at their will. That, therefore, no right
of any denomination can be cancelled, abridged, restrained, or modified,
by the Congress, by the Senate, or House of Representatives, acting in
any capacity, by the. President, or any department or officer of the United
States, except in those instances in which poiver is given by the, Constitu-
tion for those purposes ; and that, among other essential rights, the liberty
of conscience and of the press, cannot be cancelled, abridged, restrained,
or modified, by any authority of the United States.
Here is an express and solemn declaration by the convention of the
state, that they ratified the Constitution in the sense, that no right of any
denomination can be cancelled, abridged, restrained, or modified by the
government of the United States or any part of it ; except in those in-
stances in which power is given by the Constitution ; and in the sense
particularly, "that among other essential rights, the liberty of conscience
and freedom of the press cannot be cancelled, abridged, restrained, or
modified, by any authority of the United States."
Words could not well express, in a fuller or more forcible manner, the
understanding of the convention, that the liberty of conscience and the
freedom of the press, were equally and completely exempted from all
authority whatever of the United States.
Under an anxiety to guard more effectually these rights against every
possible danger, the convention, after ratifying the Constitution, proceeded
to prefix to certain amendments proposed by them, a declaration of rights,
in which are two articles providing, the one/or the liberty of conscience,
the other for the freedom of speech and of the press.
Similar recommendations having proceeded from a number of other
states, and Congress, as has been seen, having in consequence thereof,
and with a view to extend the ground of public confidence, proposed,
among other declaratory and restrictive clauses, a clause expressly
securing the liberty of conscience and of the press ; and Virginia having
concurred in the ratifications which made them a part of the Constitution,
REPORT OF 1799. 229
it will remain with a candid public to decide, whether it would not mark
an inconsistency and degeneracy, if an indifference were now shown to a
palpable violation of one of those rights, the freedom of the press ; and to
a precedent therein, which may be fatal to the other, the free exercise of
religion.
That the precedent established by the violation of the former of these
rights, may, as is affirmed by the resolution, be fatal to the latter, appears
to be demonstrable, by a comparison of the grounds on which they respec-
tively rest ; and from the scope of reasoning, by which the power over
the former has been vindicated.
First. Both of these rights, the liberty of conscience and of the press,
rest equally on the original ground of not being delegated by the Consti-
tution, and consequently withheld from the government. Any construc-
tion, therefore, that would attack this original security for the one, must
have the like effect on the other.
Secondly. They are both equally secured by the supplement to the
Constitution ; being both included in the same amendment, made at the
same time, and by the same authority. Any construction or argument,
then, which would turn the amendment into a grant or acknowledgment
of power with respect to the press, might be equally applied to the free-
dom of religion.
Thirdly. If it be admitted that the extent of the freedom of the press,
secured by the amendment, is to be measured by the common law on this
subject, the same authority may be resorted to, for the standard which is
to fix the extent of the " free exercise of religion." It cannot be neces-
sary to say what this standard would be ; whether the common law be
taken solely as the unwritten, or as varied by the written law of England.
Fourthly. If the words and phrases in the amendment, are to be con-
sidered as chosen with a studied discrimination, which yields an argument
for a power over the press, under the limitation that its freedom be not
abridged, the same argument results from the same consideration, for a
power over the exercise of religion, under the limitation that its freedom
be not prohibited.
For, if Congress may regulate the freedom of the press, provided they
do not abridge it, because it is said only " they shall not abridge it," and
is not said, " they shall make no law respecting it," the analogy of
reasoning is conclusive, that Congress may regulate and even abridge the
free exercise of religion, provided they do not prohibit it, because it is said
only " they shall not prohibit it," and is not said, " they shall make no
law respecting, or no law abridging it."
The General Assembly were governed by the clearest reason, then, in
considering the " sedition-act," which legislates on the freedom of the
press, as establishing a precedent that may be fatal to the liberty of con-
science; and it will be the duty of all, in proportion as they value the
security of the latter, to take the alarm at every encroachment on the
former.
The two concluding resolutions only remain to be examined. They
are in the words following :
That the good people of this commonwealth^ having ever felt and con-
230 REPORT OF 1799.
tinuing to feel the most sincere affection for their brethren of the other
states ; the truest anxiety for establishing and perpetuating the union of
all ; and the most scrupulous fidelity to that Constitution, which is the
pledge of mutual friendship, and the instrument of mutual happiness;
the General Assembly doth solemnly appeal to the like dispositions in the
other states, in confidence that they will concur with this commonwealth
in declaring, as it does hereby declare, that the acts aforesaid are uncon-
stitutional;* and, that tJie necessary and proper measures will be taken
by each, for co-operating with this state, in maintaining unimpaired
the authorities, rights, and liberties reserved to the states respectively, or
to the people.
That the governor be desired to transmit a copy of the foregoing reso-
lutions to the executive authority of each of the other states, with a request
that the same may be communicated to the legislature thereof; and that a
copy be furnished to each of the senators and representatives representing
this state in the Congress of the United States.
The fairness and regularity of the course of proceeding here pursued,
have not protected it against objections even from sources too respectable
to be disregarded;
It has been said, that it belongs to the judiciary of the United States,
and not the state legislatures, to declare the meaning of the Federal Con-
stitution.
But a declaration that proceedings of the Federal Government are not
warranted by the Constitution, is a novelty neither among the citizens, nor
among the legislatures of the states ; nor are the citizens or the legisla-
ture of Virginia, singular in the example of it.
Nor can the declarations of either, whether affirming or denying the
/ constitutionality of measures of the Federal Government, or whether
made before or after judicial decisions thereon, be deemed, in any point of
view, an assumption of the office of the judge. The declarations, in such
cases, are expj^ssiqns of opinion, unaccompanied with any other effect
than what they may produce on opinion, by ..exciting reflection. The
v expositions of the judiciary, on the other hand, are carried into immediate
^ effect by force. The former may lead to a change in the legislative ex-
* In the original resolutions as submitted by Mr. John Taylor, there followed after
the word "unconstitutional," the words "and not law, but utterly null, void, and of no
force or effect." In the course of the debate, they were stricken out upon motion of
Mr. Taylor himself. (See ante, p. 150.) Mr. Madison's explanation of this fact, in
his letter to Mr. Everett, (see post, Appendix, p. 256,) is, that although these words
were, in fact, but synonymous with " unconstitutional," yet to guard against a mis-
understanding of this phrase, as more than declaratory of opinion, the word " uncon-
stitutional" was alone retained as not liable to that danger. This explanation is
abundantly supported by the circumstances. Mr. John Taylor had contended that
the resolution in question, merely expressed the opinion of the legislature, such as
it was competent to it to express, as a necessary concomitant of an attempt to procure
an amendment to the Constitution from the other states. (Ante, p. 112-13.) Mr.
G. K. Taylor, on the other hand, insisted that the words used, imported not merely
an opinion, but a fact, which discharged the people from any submission to the laws
thus denounced (ante, p. 140) ; and then Mr. J. Taylor moved to strike out the
words above mentioned.
REPORT OF 1799. 231
pression of the general will ; possibly to a change in the opinion of the
judiciary ; the latter enforces the general will, whilst that will and that
opinion continue unchanged.
And if there be no impropriety in declaring the unconstitutionality of
proceedings in the Federal Government, where can be the impropriety of
communicating the declaration to other states, and inviting their concur-
rence in a like declaration? What is allowable for one, must be allow-
able for all ; and a free communication among the states, where the Con-
stitution imposes no restraint, is as allowable among the state governments
as among other public bodies or private citizens. This consideration
derives a weight, that cannot be denied to it, from the relation of the state
legislatures to the federal legislature, as the immediate constituents of one
of its branches.
The legislatures of the states have a right also to originate amendments
to the Constitution, by a concurrence of two-thirds of the whole number,
in applications to Congress for the purpose. When new states are to be
formed by a junction of two or more states, or parts of states, the legisla-
tures of the states concerned are, as well as Congress, to concur in the
measure. The states have a right also to enter into agreements or com-
pacts, with the consent of Congress. In all such cases, a communication
among them results from the object which is common to them.
It is lastly to be seen, whether the confidence expressed by the resolu-
tion, that the necessary and proper measures would be taken by the other
states for co-operating with Virginia in maintaining the rights reserved to
the states, or to the people, be in any degree liable to the objections which
have been raised against it.
If it be liable to objection, it must be because either the object or the
means are objectionable.
The object being to maintain what the Constitution has ordained, is in
itself a laudable object.
The means are expressed in the terms " the necessary and proper mea-
sures." A proper object was to be pursued, by means both necessary and
proper.
To find an objection, then, it must be shown that some meaning was
annexed to these general terms, which was not proper; and, for this pur-
pose, either that the means used by the General Assembly were an exam-
ple of improper means, 'or that there were no proper means to. which the
terms could refer.
In the example given by the state, of declaring the alien and sedition-
acts to be unconstitutional, and of communicating the declaration to the
other states, no trace of improper means has appeared. And if the other
states had concurred in making a like declaration, supported, too, by the
numerous applications flowing immediately from the people, it can scarcely
be doubted, that these simple means would have been as sufficient, as they
are unexceptionable.
It is no less certain that other means might have been employed, which
are strictly within the limits of the Constitution. The legislatures of the
states might have made a direct representation to Congress, with a view
to obtain a rescinding of the two offensive acts ; or, they might have
232 REPORT OF 1799.
represented to their respective senators in Congress their wish, that two-
thirds thereof would propose an explanatory amendment to the Constitu-
tion ; or two-thirds of themselves, if such had been their option, might,
by an application to Congress, have obtained a convention for the same
object.
These several means, though not equally eligible in themselves, nor pro-
bably, to the states, were all constitutionally open for consideration. -And
if the General Assembly, after declaring the two acts to be unconstitu-
tional, the first and most obvious proceeding on the subject, did not under-
take to point out to the other states a choice among the farther measures
that might become necessary and proper, the reserve will not be miscon-
strued by liberal minds into any culpable imputation.
These observations appear to form a satisfactory reply to every objec-
tion which is not founded on a misconception of the terms employed in
the resolutions. There is one other, however, which may be of too much
importance not to be added. It cannot be forgotten, that among the argu-
ments addressed to those who apprehended danger to liberty from the
establishment of the General Government over so great a country, the
appeal was emphatically made to the intermediate existence of the state
governments, between the people and that government, to the vigilance
with which they would descry the first symptoms of usurpation, and to
the promptitude with which they would sound the alarm to the public.
This argument was probably not without its effect; and if it was a proper
one then, to recommend the establishment of the Constitution, it must be
a proper one now, to assist in its interpretation.
The only part of the two concluding resolutions that remains to be
noticed, is the repetition in the first, of that warm affection to the union
and its members, and of that scrupulous fidelity to the Constitution, which
have been invariably felt by the people of this state. As the proceedings
were introduced with these sentiments, they could not be more properly
closed than in the same manner. Should there be any so far misled as
to call in question the sincerity of these professions, whatever regret may
be excited by the error, the General Assembly cannot descend into a dis-
cussion of it. Those, who have listened to the suggestion, can only be
left to their own recollection of the part which this state has borne in the
establishment of our national independence, in the establishment of our
national Constitution, and in maintaining under it the authority and laws
of the Union, without a single exception of internal resistance or commo-
tion. By recurring to these facts, they will be able to convince themselves,
that the representatives of the people of Virginia, must be above the neces-
sity of opposing any other shield to attacks on their national patriotism,
than their own consciousness, and the justice of an enlightened public;
who will perceive in the resolutions themselves, the strongest evidence of
attachment both to the Constitution and to the Union, since it is only by
maintaining the different governments and departments within their re-
spective limits, that the blessings of either can be perpetuated.
The extensive view of the subject thus taken by the committee, has led
them to report to the House, as the result of the whole, the following reso-
lution :
REPORT OF 1799.
233
Resolved, That the General Assembly, having carefully and respect-
fully attended to the proceedings of a number of the stales, in answer to
its resolutions of December 21, 1798, and having accurately and fully
re-examined and reconsidered the latter, finds it to be its indispensable
duty to adhere to the same, as founded in truth, as consonant with the
Constitution, and as conducive to its preservation ; and more especially
to be its duty to renew, as it does hereby renew, its protest against
"the alien and sedition-acts," as palpable and alarming infractions of the
Constitution.
The foregoing report was industriously circulated amongst the people
by virtue of the following resolution.
IN THE HOUSE OF DELEGATES,
Monday, January 20, 1800.
Resolved, That five thousand copies of the report of the select com-
mittee, to whom were referred the answers of several states upon the reso-
lutions of the last legislature, the said answers, and, also, the instructions
to the senators of this state, in the Congress of the United States, together
with the names of those who voted on each of those subjects, be printed
without delay; and that the executive be requested, as soon as may be,
to distribute them equally, in such manner as it shall think best, among
the good people of this commonwealth.
Attest,
WILLIAM WIRT, C. H. D.
H. BROOKE, C. S.
At the time of adopting this report, the General Assembly was com-
posed of the following persons the names of the Federalists being in
italics :
HOUSE OF DELEGATES.
ACCOMAC.
John Wise,
Thos. M. Bailey.
AMHERST.
David S. Garland,
Wra. B. Hare.
AUGUSTA.
Robt. Doake,
Andrew Anderson.
ALBEMARLE.
Francis Walker,
Wm. Woods.
AMELIA.
Wm. B. Giles,
Joshua Chaffin.
Samuel Blackburn,
Samuel Vance.
234
BEPORT OP 1799.
BEDFORD.
Samuel Hancock,
Isaac Otey.
BERKELEY.
Magnus Tate,
Alex. White.
BOTETOURT.
James Breckenridgc,
John Miller.
BRUNSWICK.
James Fletcher,
Wm. Ruffin.
BUCKINGHAM.
Linnseus Boiling,
Charles Yancey.
BROOKE.
Robert Calwell,
Jno. G. Young.
CAMPBELL.
Thomas West,
John F. Powell.
John Taylor,
George Buckner.
CHARLOTTE.
Thos. Read,
Wm. Price.
CHARLES CITY.
Collier Harrison,
Samuel Tyler.
CHESTERFIELD.
Matthew Cheatham,
Thos. A. Taylor.
CUMBERLAND.
Wm. Daniel, Jr.,
James Deane.
iDULPEPER.
John Roberts,
Moses Green.
DINWIDDIE.
Peterson Goodwin,
John Pegram, Jr.
ELIZABETH CITY.
George Booker,
W. Westwood.
J[ohn Daingerfield,
James Garnett.
FAIRFAX.
Richard B. Lee,
Thomas Swann.
FAUQUIER.
William Clarkson,
Elias Edmonds.
FLU VAN NA.
Joseph Haden,
James Payne.
FREDERICK.
Archibald Magill,
George Eskridge.
FRANKLIN.
Moses Greer,
Benjamin Cooke.
GREENESVILLE.
Nathaniel Rieves,
Braxton Robinson.
GLOUCESTER.
Wm. Hall,
Christopher Garland.
GOOCHLAND.
James Pleasants, Jr.,
Wm. Lee.
GREENBRIAR.
John Matthews,
Wm. H. Cavendish.
GRAYSON.
Philip Gaines.
HALIFAX.
John B. Scott,
Richard Howson.
HAMPSHIRE.
Fielding Calmes,
John Higgins.
Thomas Starke,
Thomas White.
John G. Jackson,
John Prunty.
HARDY.
Jacob Fisher,
Christian Simons.
HENRICO.
Miles Selden,
Wm. Price.
REPORT OF 1799.
235
HENRY.
Joseph Martin,
John Redd.
ISLE OF WIGHT.
Dolphin Driver,
James Johnston.
JAMES CITY.
Littleton W. Tazewell,
Wm. Lightfoot.
KING AND QUEEN.
Richard Corbin,
Larkin Smith.
KANAWHA.
Thomas Lewis,
David Ruffner.
KING GEORGE.
Gustavus B. Wallace,
Burdett Ashton.
KING WILLIAM.
Robert Pollard,
Nathaniel Burwell.
LANCASTER.
Joseph Carter,
James Ball.
LOUDOUN.
Joseph Lewis,
Wm. Noland.
LOUISA.
Wm. O. Callis,
Robt. Yancey.
LEE.
Charles Cocke,
David Chadwell.
LUNENBURG.
Francis Epes,
Wm. Cowan.
MATTHEWS.
Zadock Litchfield,
Joseph Billups, Jr.
MADISON.
Robert Roebuck,
Henry Hill.
MECKLENBURG.
Edward L. Tabb,
John Nelson.
MIDDLESEX.
Churchill Blakey,
Robt. B Daniel.
MONONGALIA.
John Evans,
Thomas WiZson.
MONTGOMERY.
James Craig,
Daniel Howe.
NANSEMOND.
Willis Riddick,
Wm. Sumner.
NEW KENT.
John D. Watkins,
James Taylor.
Thomas Matthews,
Robert Butt.
NORTHAMPTON.
Nathaniel Darby,
Wm. Satchell.
NORTHUMBERLAND.
Wm. Claughton,
Wm. Ball.
NOTTOWAY.
Freeman Epes,
Grief Green.
Benjamin Biggs,
Ebenezer Zane.
ORANGE.
James Madison,
James Barbour.
PITTSYLVANIA.
Theodoric B. M' Robert,
Thomas H. Wooding.
POWHATAN.
Wm. Moseley,
Frederick Woodson.
PRINCE EDWARD.
Peter Johnston,
Charles Scott.
PRINCE GEORGE.
James Cureton,
George K. Taylor.
PRINCE WILLIAM.
John Pope,
Thomas Mason.
PRINCESS ANNE.
James Robinson,
Thomas Lawson.
236
REPORT OF 1799.
PENDLETON.
STAFFORD.
William MCoy,
Jacob Hull.
Nathaniel Fox,
Daniel C. Brent.
PATRICK.
8URRY.
Joshua Rentfro,
Archelaus Hughes.
Canfield Seward,
Nicholas SebrelL
RANDOLPH.
SUSSEX.
William Wilson,
John Hadden.
John R. Mason,
Robert Smith.
RICHMOND.
WARWICK.
Richard Barnes,
William M'Carty.
Richard Gary,
John Burnham.
ROCKBRIDOE.
WESTMORELAND.
John Bowyer,
Andrew Moore.
Henry S. Turner,
George Garner.
ROCKINGHAM.
WASHINGTON.
Benj. Harrison,
George Huston.
Samuel Meek,
James Dysart.
RUSSELL.
WTTHE.
Simon Cockrell,
James M'Farlane.
Samuel Crockett,
John Evans.
HENANDOAH.
YORK.
John Gatewood,
Wm. H. Dulaney.
Samuel Shield,
Thomas Griffin.
SOUTHAMPTON.
Wm. Blow,
Wm. Bailey.
RICHMOND CITY.
Charles Copland.
WILLIAMSBURG.
SPOTT8YLVANIA.
Benjamin C. Waller.
John Mercer,
Larkin Stannard.
NORFOLK BOROUGH.
Robert B. Taylor.
SENATE.
The names of the senators will appear, so far as the vote taken upon
the report is concerned, from the ayes and noes, on the next page.
The vote upon the report, as proposed by the committee, was taken in
the House of Delegates on the 7th of January, 1800, and in the Senate on
the 18th.
The names of those who voted on either side are as follows :
IN THE HOUSE OF DELEGATES.
In the affirmative. Messrs. Smith (Speaker), Walker, Woods, Giles,
REPORT OP 1799. 237
Chaffin, David S. Garland, Hare, Vance, Calwell, Young, Ruffin, Charles
Yancey, Boiling, Buckner, Read, Price (of Charlotte), Collier Harrison,
Tyler, Cheatham, Thomas A. Taylor, Roberts, Moses Green, William
Daniel, Deane, Pegram, Goodwyn, Booker, Westwood, Daingerfield,
Garnett, Haden, Payne, Greer, Cook, Hall, Christopher Garland, Plea-
sants, William Lee, Gaines, John B. Scott, Howson, Calmes, Higgins,
Selden, Price (of Henrico), Starke, Thomas White, Jackson, Prunty,
Martin, Redd, Driver, James Johnston, Lightfoot, Callis, Francis Epes,
Hill, Roebuck, Billups, Litchfield, Blakey, Ro. B. Daniel, Craig, Howe,
Riddick, Claughton, Ball, Freeman Epes, Grief Green, Madison, Barbour,
M'Roberts, Moseley, Woodson, Peter Johnston, Pope, Thomas Mason,
Rentfro, Haddan, Barnes, M'Carty, Bowyer, Moore, Benjamin Harrison,
Huston, Cockrell, M'Farlane, Dulaney, Gatewood, Mercer, Stannard,
Fox, Seward, Sebrell, Burnham, Meek, Dysart, John Evans, Shield,
Waller. 100.
In the negative. Messrs. Wise, Thomas Bailey, Doake, Anderson,
Blackburn, Hancock, Otey, Tate, Alex. White, Breckenridge, Miller,
West, Powell, Swann, Richard B. Lee, Clarkson, Edmonds, Magill,
Eskridge, John Matthews, Cavendish, Braxton Robinson, Fisher, Simon,
Thomas Lewis, Ruffner, Wallace, Ashton, Burwell, Ball, Joseph Lewis Jr.,
Noland, Cowan, Nelson, Tabb, John Evans, Jr., Thomas Wilson, Sumner,
Watkins, James Taylor, Butt, Darby, Satchell, Biggs, Wooding, Charles
Scott, George K. Taylor, Cureton, Lawson, James Robinson, M'Coy,
Hull, Blow, William Bailey, Garner, Turner, Crockett, Griffin, Copland,
Ro. B. Taylor. 60.
IN THE SENATE.
In the affirmative. Messrs. Creed Taylor, Richard Kennon, Burwell
Bassett, Thomas Royster, Nicholas Faulcon, Holden Hudgins, French
Strother, Thomas Ridley, John Preston, John Hoomes, Benjamin Temple,
Thomas Newton, Nicholas Cabell, George Penn, Robert Saunders. 15.
In the negative. Messrs. John Tayloe, Francis Peyton, Charles Ma-
gill, Gideon Spencer, John Raymond, John Eyre. 6.
03" The Senate then consisted of twenty-four members, so that three
did not vote.
VI.
INSTRUCTIONS TO VIRGINIA SENATORS.
IN THE HOUSE OF DELEGATES,
Saturday, January 11, 1800.
THE House proceeded to consider the instructions from the General
Assembly of Virginia, to STEPHENS THOMPSON MASON and WILSON GARY
NICHOLAS, senators from the state of Virginia, in the Congress of the
United States. The instructions are as follows :
The General Assembly of the commonwealth" of Virginia, though it
entertains no doubt of your punctual performance of your duty, or of your
faithful adherence to the great principles of constitutional law, and national
policy, deems it incumbent on it to communicate its opinions, formed after
the most mature deliberation, on certain subjects essentially connected,
as it solemnly believes, with the dearest rights, and most important inte-
rests of the people.
The General Assembly of Virginia will not now enter into a minute
detail of all the facts and reasonings which'justify and require the instruc-
tions hereto subjoined. It cannot, however, forbear to remind you of
some facts and observations, which it deems too expressive and impor-
tant to be passed over in silence. It had indulged a hope, when there
was a prospect of an accommodation of differences with the French re-
public, or, if even the existing mission should not terminate in that desirable
event,* when all the belligerent nations of Europe are too much occupied
* The mission referred to was composed of Messrs. Oliver, Ellsworth, of Connecticut,
then Chief Justice of the United States, William R. Davie, of North Carolina, and
William Vans IVJurray, of Maryland, then the United States minister at the Hague.
As soon as Talleyrand discovered the gross blunder he had Committed in dismissing
the American plenipotentiaries, in the manner related in the preface (see page xii.),
and that the people of the United States would heartily support their government, he
hastened to avert the gathering storm by instructing the French secretary of legation
at the Hague to give Mr. Murray, our minister there, assurances, at first informal, but
finally distinct and authoritative, that "whatever plenipotentiary the government of
the United States might send to France, to put an end to the existing differences
INSTRUCTIONS TO SENATORS. 239
with European concerns, to meditate an invasion of the United States,
that the people would have been relieved from the evils and expenses in-
cident to a military establishment, such as that authorized by the fifth Con-
gress ; but it has been with the most painful emotions, that it has seen,
at the opening of the present session of Congress, a total disappointment in
this just and pleasing expectation. The following intimation is contained
in the speech of the President, and approved in the answers of the two
houses of Congress. " The result of the mission to France is yet uncertain,
but however it may terminate, a steady perseverance in a system of national
defence, commensurate with our resources and the situation of the United
States, is an obvious dictate of wisdom." This recommendation, if carried
into practice, would materially lessen the advantages which would natu-
rally result from an accommodation with the French republic, the most
important of which would be a relief from the evils incident to a prepara-
tion for a rupture, and seems to establish a position never before officially
advanced in the United States that war in Europe is of itself a sufficient
cause for raising a standing army here, equal at least to the present mili-
tary establishment. The experience of all ages has shown that the respite
from wars amongst the European nations is too short to justify disbanding
an existing army, and raising another during the intervals of peace, as a
preparation for the next rupture ; and of course, if European wars be a
sufficient cause for raising military establishments here, a perpetual stand-
ing army would be the certain consequence of the recommendation. It
cannot have escaped your notice, that the present war in Europe ha*s not
hitherto been deemed a sufficient cause for increasing the military esta-
blishment of the United States. So far from it, that during the existence
of the war, the former establishment was actually reduced. It is equally
notorious that the only motive avowed for augmenting the military force,
arose from the apprehension of an actual invasion from France ; and the
same law which gave rise to the army, contains a provision for disbanding
it, upon an accommodation with that republic. It cannot therefore but
produce much concern, that notwithstanding the existing prospect of ac-
commodation, it should not only be considered as necessary to go on with
the immense expense of such an establishment, but that it should be
deemed expedient to persevere in a system of defence commensurate with
the resources and situation of the United States, even in the event of a
successful termination of the pacific mission and a restoration of that state
between the two countrie^, would be undoubtedly received with the respect due to the
representative of a free, independent, and powerful nation," employing, if will be ob-
served, the very terms which Mr. Adams had used in his message of 21st June, 1798,
as expressive of the only condition on which he would again send a minister to France.
Mr. Murray, having acquainted his government with this overture, the President, on
the 18th of February, 179'J, nominated him to the Senate as minister plenipotentiary
to the French republic. On the 25th, however, recalling that nomination, he presented
the names of Messrs. Ellsworth, Henry, and Murray, who were confirmed. Mr. Henry
having declined the appointment, it was subsequently conferred on Mr. Davie, who,
together with Mr. Ellsworth, having joined Mr. Murray in Paris, in March, 1800, a
convention was concluded, on the last day of the following September, which adjusted
the principal differences between the two countries. (See 2 Am. St. Papers, 239, 240,
and 295; 3 Jeff. Mem. 421-423.)
240 INSTRUCTIONS TO SENATORS.
of things which preceded the crisis which was supposed by Congress to
require so great an augmentation of the military force. Although the
Constitution submits the right of raising armies to the discretion of Con-
gress, yet, it evidently contemplated the rnilitia as the great bulwark of
national defence, as well, to use the language of the Constitution, to repel
invasions, as to execute the laws ofilie union and suppress insurrections,
and contemplated the right of raising armies for pressing and extraordinary
emergencies. That the militia, except in such emergencies, is the only
safe and adequate defence of the nation, is a political axiom hitherto held
sacred in the United States. This is not only the obvious meaning of the
Constitution, but is still more strongly evidenced by the practical construc-
tion thereof under the former administration, as will appear by reviewing
its proceedings for several successive years after the government was put
into operation. Shortly after that event, the first President in his speech
on the 8th of January, 1790, called the attention of Congress, to the great
business of providing for the national defence in the following words : " A
free people ought not only to be armed, but disciplined, to which end an
uniform and well-digested plan is requisite." Acting under the same im-
pression in his speech on the 25th of October, 1791, he again reminded
Congress of the militia, as the great depository of national force. Speaking
of the several objects referred to the consideration of Congress, in referring
to the militia, he observes : " The first is certainly an object of primary
importance, whether viewed in reference to the national security, or to the
satisfaction of the community, or to the preservation of order ; in con-
nexion with this, the establishment of competent magazines and arsenals,
and the fortifications naturally present themselves to consideration. The
safety of the United States, under divine protection, ought to rest on the
basis of systematic and solid arrangements, exposed as little as possible to
the hazard of fortuitous circumstances."
These recommendations being considered as relating exclusively to the
militia, gave rise to a law more effectually to provide for the national de-
fence, by establishing an uniform militia throughout the United States.
The President again recurring to the militia, as the safe and adequate
defence of the nation, in his speech on the third of December, 1793, after
speaking of the necessity of procuring arms and other military apparatus,
emphatically observes : " Nor can such arrangements, with such objects,
be exposed to the censure or jealousy of the warmest friends of republican
government. They are incapable of abuse in the hands of a 'militia, who
ought to possess a pride in being the depository of tfa force of the republic,
and may.be trained to a degree of energy equal to every military exigency
of the United States. But it is an inquiry which cannot be too solemnly
pursued, whether the act has organized them so as to produce their full
effect" And again, after the militia had demonstrated their efficacy in
promptly marching to suppress an opposition to the laws in Pennsylvania,
on the 19th of November, 1794, in his speech the President observes :
" The devising and establishing a well-regulated militia, would be a
genuine source of legislative honour, and a perfect title to public gratitude.
I therefore entertain a hope, that the present session will not pass, without
carrying to its full energy the power of organizing, arming, and disciplin-
INSTRUCTIONS TO SENATORS. 241
ing the militia, and thus providing in the language of the Constitution for
calling them forth, to execute the laws of the Union, suppress insurrec-
tions, and repel invasions, as auxiliary to the state of our defence, to which
Congress can never too frequently recur ; they will not omit to inquire
whether the fortifications which have been already licensed by law, be
commensurate with our exigencies." These quotations require no illus-
tration. They demonstrate the principle contended for by the General
Assembly. Until the fifth Congress this principle appears to have been
duly respected. ' It was then materially varied by the substitution of a
military establishment, and by volunteer corps officered by the President
and not by the states, as the Constitution requires that the militia should
be, at the same time refusing to arm and equip any portion of the militia
for -the purposes of t defence.
The solicitude of the Virginia Assembly for disbanding the army and
reinstating the great constitutional principle of national defence, is greatly
increased by referring to the enormous sums appropriated for supporting
the army and navy. During the last year, whilst money was procured at
eight per centum, the appropriations for the support of the army alone,
amounted to 4,200,000 dollars ; for fortifications, 700,000 ; for the navy,
4,350,000 ; amounting in the whole to 9,250,000, exclusively of a great
and unascertained sum of voluntary subscriptions for building and equip-
ping vessels of war for which the subscribers receive an interest at six per
centum. Thus imposing an annual debt, or an annual tax upon the people
of nearly two dollars for every individual throughout the United States,
to say nothing of the moral and political evils incident to a standing army
and some of which are already developing themselves in the United States.
Considering the great distance of the United States from the powerful
nations of Europe, the natural strength of the country, the spirit of the
people, and the fate of one invading experiment made at a time and under
circumstances infinitely unfavourable to the United States compared with
their present situation, the General Assembly is persuaded that as long as
the nations of Europe continue at war with each other, no formidable in-
vasion is to be apprehended at all, nor a sudden and formidable invasion
at any time. Under this prospect of things the General Assembly holds it
as the dictate of true policy in the federal government to husband the
public resources, to arrange and prepare the militia, and to cultivate har-
mony by removing as far as possible, causes of jealousy and disapproba-
tion. With these advantages it cannot be doubted that the United States
would be in a better posture for facing any danger that can be seriously
apprehended, than can be given them by the present military establish-
ment accompanied with the anticipation of resources and the accumula-
tions of public debts and taxes inseparable therefrom.
In reviewing the measures adopted by the fifth Congress, the General
Assembly cannot overlook the act suspending all commercial intercourse
with the French dominions.* However ready the General Assembly and
* This policy was begun by act of 13th June, 1798, which took effect from 1st July
following, and expired 3d March, 1799. It was renewed by act of 9th February, 1799,
which expired 3d March, 1800. And was again renewed 27th February, 1800, until
3d March, 1801.
16
242 INSTRUCTIONS TO SENATORS.
its constituents may be to bear with cheerfulness their full share of all
necessary burdens, and to be among the foremost, in making all necessary
sacrifices, they cannot be insensible to some of the effects of this measure,
which press with peculiar weight on them, at the same time that they must
be in some degree felt, by every part of the United States. The article
of tobacco, as you well know, constitutes a principal staple in the exports
of this state. For several years past it has been an increasing one.
France and the markets supplied, or that could be supplied through her,
consume a very great proportion of all the tobacco made in the United
States. Great Britain is supposed to consume not more than ten or twelve
thousand hogsheads. The consequence of passing this prohibitory act,
cutting off one part of the continental market, in Europe, whilst the British
fleet under the pretext of blockades had cut off another, has been to throw
almost the whole of this great and valuable staple into* the ports of Great
Britain ; from which, as a belligerent country, re-exportation to other
markets, must be \nade with great difficulty, risk, and charges, whilst the
monopoly thus thrown into a single market has had the natural effect of
reducing the price of the article far below its usual standard, at the very
time when, within the prohibited markets, it would have sold at a rate still
more above the usual prices. At the time of passing the law, the average
price of tobacco in Virginia was about ten dollars at present the price is
not more than about three dollars and thirty-three cents, and although
other circumstances may possibly in some degree have contributed to
produce this immense difference, yet it cannot be doubted that the act in
question has been the principal cause. From this state of things it neces-
sarily happens, that the merchants who were engaged in this branch of
trade have been most extensively injured ; the planter receives not more
than a third of the value of his labour bestowed on the article of tobacco;
the ability to pay the requisite taxes, is proportionably diminished, and the
revenue from imports likely to be reduced, by the reduction of the value
of the exports. On this consideration we think it proper to instruct you,
to solicit a revision of the act aforesaid, which we cannot, from any infor-
mation known to the public, perceive to be in any manner conducive in
its operation to the national interest. Nor do we perceive, that any in-
convenience can result from such a measure, to the existing posture of
things between the United States and the French republic. If it should
have any influence on the negotiations depending, it will probably be of a
conciliatory, rather than of a disadvantageous nature. And should the
negotiations not issue in the desired accommodation, this branch of the
arrangements, that may'then become proper, will be subject to the same
discretion which will decide on every other.
With respect to the navy, it may be proper to remind you that what-
ever may be the proposed object of its establishment, or whatever may be
the prospect of temporary advantages resulting therefrom, it is demon-
strated by the experience of all nations, who have ventured far into naval
policy, that such prospect is ultimately delusive; and that a navy has ever
in practice been known more as an instrument of power, a source of ex-
pense, and ap occasion of collisions and wars with other nations, than as
an instrument of defence, of economy, or of protection to commerce.
INSTRUCTIONS TO SENATORS. 243
Nor is there any nation, in the judgment of the General Assembly, to
whose circumstances this remark is more applicable than to the United
States.
The General Assembly of Virginia would consider itself unfaithful to
the trusts reposed in it, were it to remain silent, whilst a doctrine
has been publicly advanced, novel in its principle, and tremendous in its
consequences : That the common law of England is in force under the
government of the United States ! It is not at this time proposed to
expose at large the monstrous pretensions resulting from the adoption of
this principle.* It ought never, however, to be forgotten, and can never
be too often repeated, that it opens a new tribunal for the trial of crimes
never contemplated by the federal compact. It opens a new code of san-
guinary criminal law, both obsolete and unknown, and either wholly re-
jected or essentially modified in almost all its parts by state institutions.
It arrests or supersedes state jurisdiction, and innovates upon state laws.
It subjects the citizen to punishment according to the judiciary will, when
he is left in ignorance of what this law enjoins as a duty, or prohibits as
a crime. It assumes a range of jurisdiction for the federal courts, which
defies limitation or definition. In short, it is believed that the advocates
for the principle would themselves be lost in an attempt to apply it to the
existing institutions of federal and state courts, by separating with pre-
cision their judiciary rights, and thus preventing the constant and mis-
chievous interference of rival jurisdiction.
With respect to the alien and sedition-laws, it is at present only deemed
necessary to refer you to the various discussions upon those subjects which,
in the opinion of the General Assembly of Virginia, clearly demonstrate
the unconstitutionally of their principles ; and experience has also suffi-
ciently shown, the mischiefs of their operation.
The General Assembly of Virginia, confiding in your intelligence and
zeal, trusts that these principles will be, on all proper occasions, illustrated
and supported by you, with that candour, moderation and firmness, without
which the friends of liberty and truth, however sincere, cannot render
essential service to the cause in which they are engaged.
Deeply impressed with these opinions, the General Assembly of Virginia
instructs the senators and requests the representatives from this state in
Congress, to use their best efforts
1. To procure a reduction of the army, within the narrowest limits
compatible with the protection of the forts and the preservation of the
arsenals maintained by the United States ; unless such a measure shall be
forbidden by information not known to the public.
2. To prevent any augmentation of the navy, and to promote any
proposition for reducing it, as circumstances will permit, within the nar-
rowest limits compatible with the protection of the sea-coasts, ports, and
harbours of the United States, and of consequence a proportionate reduc-
tion of the taxes.
3. To oppose the passing of any law founded on, or recognising* the
* The consequences of this doctrine are exposed in the Virginia Report. See the
argument there. Ante, p. 216 et seq.
244 VOTES ON INSTRUCTIONS TO SENATORS.
principle lately advanced, " that the common law of England is in force
under the government of the United States ;" excepting from such opposi-
tion such particular parts of the common law as may have a sanction
from the Constitution, so far as they are necessarily comprehended in the
technical phrases which express the powers delegated to the government ;
and excepting also such other parts thereof as may be adopted by Con-
gress, as necessary and proper for carrying into execution the powers
expressly delegated.
4. To procure a repeal of the acts of Congress commonly called the alien
and sedition-acts.
IN THE HOUSE OF DELEGATES.
VOTES ON INSTRUCTIONS TO SENATORS.
Saturday, January 11, 1800.
The House, according to order, proceeded to consider the " instructions
from the General Assembly of Virginia, to STEPHENS THOMPSON MASON
and WILSON GARY NICHOLAS, senators from the state of Virginia, in the
Senate of the United States ;" and the first article of the said instructions
being read, a motion was made to amend the same by adding thereto,
" unless such a measure shall be forbidden by information not known to
the public," and the same being read, a motion was made to amend the
amendment, by substituting in lieu thereof, " as soon as an accommoda-
tion of the existing differences with the French republic may render such
a reduction safe and expedient." And the question being put thereupon,
It passed in the negative.
On the motion of Mr. Richard B. Lee, seconded by Mr. George K.
Taylor,
Ordered, That the names of the ayes and noes on the foregoing ques-
tion be inserted in the journal.
The names of those who voted in the affirmative are Messrs. Bailey,
Doake, Anderson, Blackburn, Hancock, Tate, A. White, Breckenridge,
Powell, R. B. Lee, Clarkson, Edmunds, MagUl, Eskridge, J. Mathews,
Cavendish, B. Robinson, Fisher, Simon, T. Lewis, Ruffner, Ashton, Bur-
well, Ball, J. Lewis, Noland, Cowan, Nelson, J. Evans, Jun., Sumner, J.
Taylor, Darby, Satchell, Biggs, Geo. K. Taylor, Cureton, Lawson, J.
Robinson, Blow, W. Bailey, Garner, Turner, Crockett, Griffin, Copland,
R. B. Taylor. 46.
And the names of those who voted in the negative are Messrs. Wise,
Woods, Giles, Chaffin, David S. Garland, Hare, Vance, Calwell, Young,
Otey, Fletcher, Charles Yancey, West, J. Taylor, Buckner, Reid, Tyler,
Cheatham, T. A. Taylor, J. Roberts, M. Green, W. Daniel, Dean, Pegram,
VOTES ON INSTRUCTIONS-TO SENATORS. 245
Goodwyn, Booker, Westwood, Daingerfield, Garnett, Hayden, Payne,
Greer, Cooke, Hall, C. Garland, Pteasants, William Lee, Gaines, John
B. Scott, Calmes, Higgins, Selden, Price, (of Henrico,) Starke, T. White,
Jackson, Prunty, Martin, Redd, Driver, James Johnston, Tazewell, Light-
foot, Wallace, Pollard, Cocke, Callis, Yancey, Francis Eppes, Hill, Roe-
buck, Billups, Blakey, Robert B. Daniel, Craig, Howe, Riddick, Watkins,
Claughton, Ball, Freeman Eppes, Grief Green, Madison, Barbour, M'Ro-
berts, Wooding, Moseley, Woodson, Peter Johnston, Charles Scott, Pope,
Thomas Mason, M'Coy, Hull, Rentfro, Haddan, Barnes, M'Carty, Bowyer,
Moore, B.Harrison, Huston, M'Farlane, Dulany, Gatewood, Mercer, Stan-
nard, Fox, Seward, Sebrell, Smith, Burnham, Meek, Dysart, Evans, Shield,
and Waller. 107.
The question being then put on the amendment first proposed,
It passed in* the affirmative.
And then the question being put on the first article of the instructions,
as amended,
It passed in the affirmative.
On the motion of Mr. Jackson, seconded by Mr. Geo. K. Taylor,
Ordered, That the names of the ayes and noes on the foregoing ques-
tion be inserted in the journal.
The names of those who voted in the affirmative are Messrs. Woods,
Giles, Chaffin, David S. Garland, Hare, Vance, Calwell, Young, Han-
cock, Otey, Fletcher, C. Yancey, Boiling, West, James Taylor, Buckner,
Reid, Price, (of Charlotte,) Tyler, Cheatham, T. A. Taylor, Roberts, M.
Green, W. Daniel, Deane, Pegram, Goodwyn, Booker, Westwood, Dain-
gerfield, Garnett, Hayden, Payne, Greer, Cooke, Hall, C. Garland, Plea-
sants, W. Lee, Gaines, J. B. Scott, Higgins, Selden, Price, (of Henrico,)
Starke, T. White, Prunty, Fisher, Martin, Redd, Driver, J. Johnston, Taze-
well, Jackson, Lightfoot, Pollard, Cocke, Callis, R. Yancey, Francis Eppes,
Hill, Roebuck, Billups, Litchfield, Blakey, R. B. Daniel, Craig, Howe, Rid-
dick, Watkins, Claughton, Ball, Freeman Eppes, G. Green, Madison, Bar-
bour, M'Roberts, Wooding, Moseley, Woodson, Peter Johnston, C. Scott,
Pope, T. Mason, M'Coy, Hull, Rentfro, Haddan, Barnes, M'Carty, Bowyer,
Moore, B. Harrison, Huston, M'Farlane, Dulaney, Gatewood, Mercer,
Stannard, Fox, Seward, Sebrell, Burnham, Meek, Dysart, John Evans,
Shield, and Waller. 108.
And the names of those who voted in the negative are Messrs. Wise,
T. Bailey, Doake, Anderson, Blackburn, Tate, A. White, Breckenridge,
Miller, J. F. Powell, R. B. Lee, Clarkson, Magill, Eskridge, Cavendish,
Thomas Lewis, Ruffner, Wallace, Ashton, Burwell, Joseph Lewis, Noland,
Cowan, Nelson, Evans, Jun., T. Wilson, Sumner, James Taylor, Darby,
Satchell, Biggs, G. K. Taylor, Cureton, Lawson, J. Robinson, Blow, W.
Bailey, Smith, Garner, Turner, Griffin, Copland, R. B. Taylor. 42.
The second article of the instructions being then read, a motion was
made to amend the same, by striking out the whole of the said article
from the third word, and substituting in lieu of the part so struck out,
" unnecessary augmentation of the navy, and to promote any proposition
for confining it within the narrowest limits compatible with the protection
246 VOTES ON INSTRUCTIONS TO SENATORS.
of the sea-coasts, ports, and harbours, and of the commerce of the United
States ;" and the question being put thereon,
It passed in the negative.
On the motion of Mr. George K. Taylor, seconded by Mr. Cureton,
Ordered, That the names of the ayes and noes on the foregoing ques-
tion be inserted in the journal.
The names of those who voted* in the affirmative are Messrs. Wise,
T. Bailey, Doake, Anderson, Blackburn, Hancock, Otey, Alexander White,
Tate, Breckenridge, Miller, West, J. F. Powell, Booker, Westwood, Rich-
ard B. Lee, Clarkson, Edmunds, Magill, Eskridge, John Matthews, Caven-
dish, B. Robinson, Fisher, Simon, T. Lewis, Ruffner, Wallace, Ashton,
Pollard, Burwell, Ball, Joseph Lewis, Jun., Noland, Cowan, Nelson, John
Evans, Jun., T. Wilson, Sumner, James Taylor, Darby, Sttchell, Biggs,
George K. Taylor, Cureton, Lawson, James Robinson, Blow, William
Bailey, Garner, Turner, Griffin, Copland, and Robert B. Taylor. 54.
And the names of those who voted in the negative are Messrs. Woods,
Giles, Chaffin, D. S. Garland, Hare, Vance, Calwell, Young, Fletcher,
C. Yancey, Boiling, John Taylor, Buckner, Price, (of Charlotte,) Tyler,
Cheatham, T. A. Taylor, Roberts, Green, W. Daniel, Deane, Pegram,
Goodwyn, Daingerfield, Garnett, Hayden, Payne, Greer, Hall, C. Gar-
land, Pleasants, W. Lee, Gaines, J. B. Scott, Howson, Calmes, Higgins,
Selden, Price, (of Henrico,) Starke, T. White, Jackson, Prunty, Martin,
Redd, Driver, J. Johnston, Tazewell, Lightfoot, Cock^, Callis, R. Yancey,
F. Eppes, Hill, Roebuck, Billups, Litchfield, Blakey, R. B. Daniel, Craig,
Howe, Riddick, Watkins, Claughton, William Ball, Freeman Eppes, G.
Green, Madison, Barbour, M'Roberts, Woodings, Moseley, Woodson, Peter
Johnston, C. Scott, Pope, T. Mason, M'Coy, Hull, Rentfro, Haddan, Barnes,
M'Carty, Bowyer, Moore, B. Harrison, Huston, Cockrell, M'Farlane,
Dulaney, Gatewood, Mercer, Stannard, Fox, Seward, Sebrell, Smith, Burn-
ham, Meek, Dysart, Evans, Shield, and Waller. 103.
A motion was then made to amend the said article, by inserting after
the word " it," in the first line, " as circumstances will permit."
It passed in the affirmative.
The third article of the instructions being then read, a motion was made
to amend it by the following addition : "excepting from such opposition
such particular parts of the common law as may have a sanction from the
Constitution, eo far as they are necessarily comprehended in the technical
phrases, which express the powers delegated to the government : and ex-
cepting also, such other parts thereof as may be adopted as necessary and
proper for carrying into execution the powers expressly delegated." And
the question being put thereupon,
It passed in the affirmative.
On the motion of Mi*. Cureton, seconded by Mr. Breckenridge,
Ordered, That the names of the ayes and noes on the foregoing ques-
tion be inserted in the journal.
The names of those who voted in the affirmative are Messrs. Wise,
VOTES ON INSTRUCTIONS TO SENATORS. 247
T. Bailey, Woods, Giles, Chaffin, D. S. Garland, Hare, Doake, Anderson,
Blackburn, Vance, Calwell, Young, Hancock, Otey, Tate, A. White,
Breckenridge, Miller, Fletcher, C. Yaricey, Boiling, West, Powell, John
Taylor, Buckner, Reid, Price, (of Charlotte,) Tyler, Cheatham, T. A.
Taylor, Roberts, M. Green, W. Daniel,' Deane, Pegram, Goodwyn, Booker,
Westwood, Daingerfield, Garnett, R. B. Lee, Clarkson, Edmonds, J. Hay-
den, Payne, Magill, Eskridge. Greer, Cooke, Hall, C. Garland, Pleasants,
W. Lee, Gaines, Cavendish, B. Robinson, J. B. Scott, Howson, Calmes,
Higgins, Selden, Price, (of Henrico,) Starke, T. White, Prunty, Fisher,
Simon, Martin, Redd, Driver, J. Johnston, Tazewell,Lightfoot, T. Lewis,
Ruffner, Wallace, Ashton, Pollard, Burwell, Ball, J. Lewis, Noland, Callis,
R. Yancey, Francis Eppes, Cowan, Nelson, Hill, Billups,LitchfieId, Blakey,
R. Daniel, Evans, Jr., T. Wilson, Craig, Howe, Riddick, Sumner, Wat-
kins, James Taylor, Darby, Satchell. Claughton, Ball, Freeman, Eppes,
G. Green, Biggs, Madison, M'Roberts, Wooding, Moseley, Woodson, C.
Scott, Pope, G. K. Taylor, Cureton, T. Mason, Lawson, James Robinson,
M'Koy, Hull, Rentfro, Barnes, M'Carty, Bowyer, Moore, B. Harrison,
Huston, M'Farlane, Dulaney, Gatewood, Blow, William Bailey, Mercer,
Stannard, Fox, Seward, Sebrell, Smith, Burn'ham, Garner, Turner, Meek,
Dysart, Shield, Griffin, Waller, and R. B. Taylor. 149.
And the names of those who voted in the negative are
And the question being then put on the article of instruction as
amended,
It passed in the affirmative.
The fourth article of the instructions was then read, and the question
being put upon the passage thereof,
It passed in the affirmative.
That part of the instructions which relates to the act of Congress con-
cerning the suspension of intercourse with France and her dependencies
was then read, and the question being put on the passage thereof,
It passed in the affirmative.
The question being then put, that the instructions, as amended, do pass,
They passed in the affirmative.
On the motion of Mr. Jackson, seconded by Mr. Bailey,
Ordered, That the names of the ayes and noes on the foregoing ques-
tion be inserted in the journal.
The names of those who voted in the affirmative are Messrs. Woods,
Giles, Chaffin, David S. Garland, Hare, Vance, Calwell, Young, Fletcher,
Charles Yancey, J. Taylor, Buckner, Reid, Price, (of Charlotte,) Tyler,
Cheatham, Thomas A. Taylor, Roberts, Green, Wm. Daniel, Deane,
Pegram, Goodwyn, Booker, Westwood, Daingerfield, Garnett, Hayden,
Payne, Greer, Cooke, Hall, Christopher Garland, Pleasants, William Lee,
Gaines, J. B. Scott, Howson, Calmes, Higgins, Selden, Price, (of Henrico,)
Starke, Thos. White, Jackson, Prunty, Martin, Redd, Driver, James
Johnston, Tazewell, Lightfoot, Cocke, Callis, R. Yancey, Francis Eppes,
Hill, Roebuck, Billups, Litchfield, Blakey, Robert B. Daniel, Craig, Howe,
Riddick, Watkins, Claughton, J. Ball, F. Eppes, G. Green, Madison, Bar-
bour, M'Roberts, Wooding, Moseley, Woodson, Charles Scott, Pope, M'Coy,
248 VOTES ON INSTRUCTIONS TO SENATORS.
Hull, Rentfro, Haddan, Barnes, M'Carty, Bowyer, Moore, B. Harrison,
Huston, Cockrell, M'Farlane, Dulaney, Gatewood, Mercer, Stannard, Fox,
Seward, Sebrell, Burnham, Meek, 'Dysart, Shield, and Waller. 102.
The names of those who voted in the negative are Messrs. Wise,
Thomas Bailey, Doake, Anderson, Blackburn, Hancock, Otey, Tate, A.
White, Breckenridge, Miller, West, Powell, R. B. Lee, Clarkson, Ed-
monds, Magill, Eskridge, Cavendish, B. Robinson, Fisher, Simon, T.
Lewis, Ruffner, Wallace, Ashton, N. Burwell, J. Ball, J. Lewis, Jun.,
Noland, Cowan, Evans, T. Wilson, Sumner, James Taylor, Darby,
Satchell, Biggs, G. K. Taylor, Cureton, Lawson, J. Robinson, Blow,
William Bailey, Garner, Turner, Griffin, Copland, and R. B. Taylor. 49.
VII.
APPENDIX.
MR. MADISON TO MR. EVERETT.
Montpelier, August, 1830.
DEAR SIR,
I have duly received your letter, in which you refer to the " nullifying
doctrine," advocated as a constitutional right, by some of our distinguished
fellow-citizens, and to the proceedings of the Virginia Legislature in '98 and
'99, as appealed to in behalf of that doctrine; and you express a wish for
my ideas on those subjects.
I am aware of the delicacy of the task in some respects, and the diffi-
culty in every respect, of doing full justice to it. But having in more than
one instance complied with a like request from other friendly quarters, I
do not decline a sketch of the views which I have been led to take of the
doctrine in question, as well as some others connected with them ; and
of the grounds from which it appears, that the proceedings of Virginia
have been misconceived by those who have appealed to them. In order
to understand the true character of the Constitution of the United States,
the error, not uncommon, must be avoided, of viewing it through the
medium, either of a consolidated government, or of a confederated govern-
ment, whilst it is neither the one nor the other, but a mixture of both.
And having, in no model, the similitudes and analogies applicable to other
systems of government, it must, more than any other, be its own inter-
preter, according to its text and the facts of the case.
From these it will be seen, that the characteristic peculiarities of the
Constitution are, 1, the mode of its formation; 2, the division of the
supreme powers of government between the states in their united capacity,
and the states in their individual capacities.
1. It was formed, not by the governments of the component states, as
the federal government for which it was substituted was formed. Nor
was it formed by a majority of the people of the United States, as a single
community, in the manner of a consolidated government.
250 APPENDIX. MADISON TO EVERETT.
It was formed by the states, that is, by the people in each of the states,
acting in their highest sovereign capacity ; and formed consequently by
the same authority which formed the state constitutions.
Being thus derived from the same source as the constitutions of the
states, it has, within each state, the same authority as the constitution of
the state, and is as much a constitution in the strict sense of the term
within its prescribed sphere, as the constitutions of the states are within
their respective spheres ; but with this obvious and essential difference,
that being a compact among the states in their highest sovereign capacity,
and constituting the people thereof one people for certain purposes, it can-
not be altered or annulled at the will of the states individually, as the con-
stitution of a state may be at its individual will.
2. And that it divides the supreme powers of government, between the
government of the United States and the governments of the individual
states, is stamped on the face of the instrument ; the powers of war and
of taxation, of commerce and of treaties, and other enumerated powers
vested in the government of the United States, being of as high and
sovereign a character as any of the powers reserved to the state govern-
ments.
Nor is the government of the United States, created by the Constitution,
less a government in the strict sense of the term, within the sphere of its
powers, than the governments created by the constitutions of the states
are, within their several spheres. It is like them organized into legisja-
tive, executive, and judiciary departments. It operates, like them, directly
t on persons and things. And like them, it has at command a physical ?
v force for executing the powers committed to it. The concurrent operation,**,
in certain cases, is one of the features marjdng the peculiarity of the
system.
Between these different constitutional governments, the one operating in
all the states, the others operating separately in each, with the aggregate
powers of government divided between them, it could not escape attention,
that controversies would arise concerning the boundaries of jurisdiction,
and that some provision ought to be made for such occurrences. A poli-
tical system that does not provide for a peaceable and authoritative termi-
nation of occurring controversies, would not be more than the shadow of
a government; the object and end of a real government being, the substi-
tution of law and order, for uncertainty, confusion, and violence.
yC That to have left a final decision, in such cases, to each of the states, v
T .then thirteen, and already twenty-four, could not fail to make the Consti-
' lution and laws of the United States different in different states, was obvious,
and not less obvious that this diversity of independent decisions, must alto-
gether distract the government of the Union, and speedily put an end to the
Union itself. A uniform authority of the laws, is in itself a vital principle.
Some of the mostimportant laws could not be partially executed. They must
be executed in all the states, or they could be duly executed in none. An
impost, or an excise, for example, if not in force in some states, would be
defeated in others. It is well known that this was among the lessons of
experience, which had a primary influence in bringing about the existing
Constitution. A loss of its general authority would moreover revive the
APPENDIX. MADISON TO EVERETT. 251
exasperating questions between the states holding ports for foreign com-
merce, and the adjoining states without them ; to which are now added
all the inland states, necessarily carrying on their foreign commerce
through other states.
"X 'To have made the decisions under the authority of the individual states,
co-ordinate, in all cases, with decisions under the authority of the United
States, would unavoidably produce collisions incompatible with the peace
of society, and with that regular and efficient administration, which is of
the essence of free governments. Scenes could not be avoided, in which
a ministerial officer of the United States, and the correspondent officer of
an individual state, would have rencounters in executing conflicting de-
crees ; the result of which would depend on the comparative force of the
local posses attending them ; and that, a casualty depending on the politi-
cal opinions and party feelings in different states.
To have referred every clashing decision, under the two authorities,
for a final decision, to' the states as parties to the Constitution, would be
attended with delays, with inconveniences and with expenses, amounting
to a prohibition of the expedient; not to mention its tendency to impair
the salutary veneration for a system requiring such frequent interpositions,
nor the delicate questions which might present themselves as to the form
of stating the appeal, and as to the quorum for deciding it.
/ To have trusted to negotiation for adjusting disputes between the go-
vernment of the United States and the state governments, as between in-
dependent and separate sovereignties, would have lost sight altogether of
a Constitution and government for the Union, and opened a direct road,
Cfrom a failure of that resort, to the ultima ratio between nations wholly
independent of and alien to each other. If the idea had its origin in the
process of adjustment, between separate branches of the same government,
the analogy entirely fails. In the case of disputes between independent
parts of the same government, neither part being able to consummate its
will, nor the government to proceed without a concurrence of the parts,
necessity brings about an accommodation. In disputes between a state go-
vernment and the government of the United States, the case is practically
as well as theoretically different ; each party possessing all the departments
of an organized government, legislative, executive, and judiciary, and
having each a physical force to support its pretensions. Although the
issue of negotiation might sometimes avoid this extremity, how often would
it happen among so many states, that an unaccommodating spirit in some
would render that resource unavailing? A contrary supposition would
not accord with a knowledge of human nature, or the evidence of our
own political history.
The Constitution, not relying on any of the preceding modifications for
its safe and successful operation, has expressly declared, on the one hand,
1, "that the Constitution, and the laws made in pursuance thereof, and
all treaties made under the authority of the United States, shall be the
supreme law of the land ; 2, that the judges of every state shall be
bound thereby, anything in the Constitution and laws of any stafe to the
contrary notwithstanding ; 3, that the judicial power of the United
States shall extend to all cases in law and equity arising under the Con-
252 APPENDIX. MADISON TO EVERETT.
stitution, the laws of the United States, and treaties made under their
authority," &c.
On the other hand, as a security of the rights and powers of the states,
in their individual capacities, against an undue preponderance of the
powers granted to the government over them in their united capacity, the
Constitution has relied on, 1, the responsiblity of the senators and repre-
sentatives in the Legislature of the United States to the legislatures and
people of the states ; 2, the responsibility of the President to the people
of the United States ; and 3, the liability of the executive and judicial
functionaries of the United States to impeachment by the representatives
of the people of the states in one branch of the Legislature of the United
States, and trial by the representatives of the states, in the other branch ;
the state functionaries, legislative, executive, and judicial, being, at the
same time, in their appointment and responsibility, altogether independent
of the agency or authority of the United States.
How far this structure of the government of the United States is ade-
quate and safe for its objects, time alone can absolutely determine. Ex-
perience seems to have shown that, whatever may grow out of future
stages of our national career, there is, as yet, a sufficient control, in the
popular will, over the executive and legislative departments of the govern-
ment. When the alien and sedition-laws were passed in contravention to
the opinions and feelings of the community, the first elections that ensued
put an end to them. And whatever may have been the character of other
acts, in the judgment of many of us, it is but true, that they have gene-
rally accorded with the views of a majority of the states and of the people.
At the present day it seems well understood, that the laws which have
created most dissatisfaction, have had a like sanction without doors ; and
that, whether continued, varied, or repealed, a like proof will be given of
the sympathy and responsibility of the representative body to the con-
stituent body. Indeed, the great complaint now is, against the results of
this sympathy and responsibility in the legislative policy of the nation.
With respect to the judicial power of the United States, and the authority
of the Supreme Court in relation to the boundary of jurisdiction between
the federal and the state governments, I may be permitted to refer to the
thirty-ninth number of the " Federalist,"* for the light in which the
subject was regarded by its writer, at the period when the Constitution
was depending; and it is believed, that the same was the prevailing
view then taken of it, that the same view has continued to prevail, and
that it does so at this time, notwithstanding the eminent exceptions to it.
But it is perfectly consistent with the concession of this power to the
Supreme Court in cases falling within the course of its functions, to
* No. 39. It is true, that in controversies relating to the boundary between the two
jurisdictions, the tribunal which is ultimately to decide, is to be established under the
general government. But this does not change the principle of the case. The decision
is to be impartially made, according to the rules of the Constitution; and all the usual
and most effectual precautions are taken to secure this impartiality. Some such tri-
bunal is clearly essential to prevent an appeal to the sword, and a dissolution of the
compact ; and that it ought to be established under the general, rather than under the
local governments ; or, to speak more properly, that it could be safely established under
the first alone, is a position not likely to be combatted. (Note by Mr. Madison.)
APPENDIX. MADISON TO EVERETT. 253
maintain that the power has not always been rightly exercised. To say
nothing of the period, happily a short one, when judges in their seats did
not abstain from intemperate and party harangues, equally at variance
with their duty and their dignity, there have been occasional decisions
from the bench which have incurred serious and extensive disapprobation.
Still it would seem that, with but few exceptions, the course of the
judiciary has been hitherto sustained by the predominant sense of the
nation.
Those who have denied or doubted the supremacy of the judicial power
of the United States, and denounce at the same time a nullifying power in
a state, seem not to have sufficiently adverted to the utter inefficiency of a
supremacy in a law of the land, without a supremacy in the exposition
and execution of the law ; nor to the destruction of all equipoise between
the Federal Government and the state governments, if, whilst the func-
tionaries of the Federal Government are directly or indirectly elected by
and responsible to the states, and the functionaries of the states are in
their appointment and responsibility wholly independent of the United
States, no constitutional control of any sort belonged to the United States
over the states. Under such an organization, it is evident that it would
be in the power of the state's, individually, to pass unauthorized laws, and
to carry them into complete effect, anything in the Constitution and laws
of the United States to the contrary notwithstanding. This would be* a
nullifying power in its plenary character ; and whether it had its final
effect, through the legislative, executive or judiciary organ of the state,
would be equally fatal to the constituted relation between the two govern-
ments,
/ Should the provisions of the Constitution as here reviewed, be found not
/ to secure the government and rights of the states, against usurpations and
/ abuses on the part of the United States, the final resort within the purview
of the Constitution, lies in an amendment of the Constitution, according
to a process applicable by the states.
And in the event of a failure of every constitutional resort, and an
accumulation of usurpations and abuses, rendering passive obedience and
non-resistance a greater evil than resistance and revolution, there can
remain but one resort, the last of all ; an appeal from the cancelled obli-
gations of the constitutional compact to original rights and the law of
self-preservation. This is the ultima ratio under all governments,
whether consolidated, confederated, or a compound of both; and it cannot
be doubted that a single member of the Union, in the extremity supposed,
but in that only, would have a right, as an extra and ultra-constitutional
Bright, to make the appeal.
"This brings us to the expedient lately advanced, which claims for a sin-
gle state a right to appeal against an exercise of power by the government
of the United States decided by the state to be unconstitutional, to the par-
ties to the, constitutional compact ; the decision of the state to have the
effect of nullifying the act of the government of the United States, unless
\ the decision of the state be reversed by three-fourths of the parties.
The distinguished names and high authorities which appear to have
254 APPENDIX. MADISON TO EVERETT.
asserted and given a practical scope to this doctrine, entitle it to a respect
which it might be difficult otherwise to feel for it.
If the doctrine were to be understood as requiring the three-fourths of
the states to sustain, instead of that proportion to reverse the decision of
the appealing state, the decision to be without effect during the appeal, it
would be sufficient to remark, that this extra-constitutional course might
well give way to that marked out by the Constitution, which authorizes
two-thirds of the states to institute and three-fourths to effectuate an amend-
ment of the Constitution, establishing a permanent rule of the highest
authority, in place of an irregular precedent of construction only.
But it is understood that the nullifying doctrine imports that the decision
of the state is to be presumed valid, and that it overrules the law of the
United States, unless overruled by three-fourths of the states.
/ Can more be necessary to demonstrate the inadmissibility of such a doc-
(trine, than that it puts it in the power of the smallest fraction over one-
fourth of the United States, that is, of seven states out of twenty-four, to
give the law and even the Constitution to seventeen states, each of the
seventeen having, as parties to the Constitution, an equal right with each
of the seven, to expound it, and to insist on the exposition? That the
seven might, in particular instances be right, and the seventeen wrong, is
more than possible. But to establish a positive and permanent rule giving
such a power, to such a minority, over such a majority, would overturn
the first principle of free government, and in practice necessarily overturn
the government itself.-
f It is to be recollected that the Constitution was proposed to the people
of the states as a whole, and unanimously adopted by the states as a
whole, it being a part of the Constitution that not less than three-fourths
of the states should be competent to make any alteration in what had
been unanimously agreed to. So great is the caution on this point, that
in two cases where peculiar interests were at stake, a proportion even of
three-fourths is distrusted, and unanimity required to make an alteration.
When the Constitution was adopted as a whole, it is certain that there
were many parts, which, if separately proposed, would have been promptly
rejected. It is far from impossible, that every part of a constitution might
be rejected by a majority, and yet taken together as a whole be unani-
mously accepted. Free constitutions will rarely if ever be formed with-
out reciprocal concessions ; without articles conditioned on and balancing
each other. Is there a constitution of a single state out of the twenty-
four that would bear the experiment of having its component parts sub-
mitted to the people and separately decided on 1
What the fate of the Constitution of the United States would be if a
small proportion of the states could expunge parts of it particularly valued
by a large majority, can have but one answer.
The difficulty is not removed by limiting the doctrine to cases of con-
struction. How many cases of that sort, involving cardinal provisions of
the Constitution have occurred ? How many now exist ? How many may
hereafter spring up 1 How many might be ingeniously created, if entitled
to the privilege of a decision in the mode proposed ?
Is it certain that the principle of that mode would not reach further
APPENDIX. MADISON TO EVERETT. 255
than is contemplated? If a single state can of right require three-fourths
of its co-states to overrule its exposition of the Constitution, because that
proportion is authorized to amend it, would the" plea be less plausible that,
as the Constitution was unanimously established, it ought to be unani-
mously expounded 1
The reply to all such suggestions seems to be unavoidable and irresisti-
ble; that the Constitution is a compact; that its text is to be expounded
according to the provision for expounding it making a part of the com-
. pact; and that none of the parties can rightfully renounce the expounding "&,
provision more than any other part. When such a right accrues, as may
accrue, it must grow out of the compact releasing the sufferers from their
fealty to it.
, In favour of the nullifying claim for the states, individually, it appears,
as you observe, that the proceedings of the Legislature of Virginia, in '98
and '99, against the alien and sedition-acts, are much dwelt upon.
It may often happen, as experience proves, that erroneous constructions,
not anticipated, may not be sufficiently guarded against, in the language
used ; and it is due to the distinguished individuals, who have miscon-
ceived the intention of those proceedings, to suppose that the meaning of
the legislature, though well comprehended at the time, may not now be
obvious to those unacquainted with the contemporary indications and im-
pressions.
But it is believed that by keeping in view the distinction between the ^
governments of the states, and the states in the sense In which they were
parties to the Constitution ; between the rights of the parties, in their con-
current and in their individual capacities ; between the several modes and
objects of interposition against the abuses of power, and especially be-
tween interpositions within the purview of the Constitution, and interposi-
tions appealing from the Constitution to the rights of nature paramount to
all constitutions ; with an intention, always of explanatory use, to the
views and arguments which were combatted, the resolutions of Virginia,
as vindicated in the report on them, will be found entitled to an exposition,
showing a consistency in their parts, and an inconsistency of the whole
with the doctrine under consideration.
That the Legislature could not have intended to sanction such a doc-
trine, is to be inferred from the debates in the House of Delegates, and
from the address of the two houses to their constituents, on the subject of
the resolutions. The tenor of the debates, which were ably conducted,
and are understood to have been revised for the press by most, if not all,
of the speakers, discloses no reference whatever to a constitutional right
in an individual state, to arrest by force the operation of a law of the
United States.* Concert among the states for redress against the alien
and sedition-laws, as acts of usurped power, was a leading sentiment; arid
the attainment of a concert, the immediate object of the course adopted
* Thus Mr. Mercer (ante, p. 42) says, " Force is not thought of by any one ;" and
V 1 - Mr. Barbour (ante, p. 59) says, he was " for using no violence," but, " for giving Con-
gress an opportunity of repealing those obnoxious laws." See also Mr. J. Taylor,
(ante, p. 113, and ante, p. 193.)
256 APPENDIX. MADISON TO EVERETT.
by the legislature, which was that of inviting the other states " to concur
in declaring the acts to be unconstitutional, and to co-operate by the ne-
cessary and proper measures in maintaining unimpaired the authorities,
rights, and liberties reserved to the states respectively and to the people."*
That by the necessary and proper measures to be concurrently and co-
\ operatively taken, were meant measures known to the Constitution,
particularly the ordinary control of the people and legislatures of the
,. , ^ states, over the government of the United States, cannot be doubted;
and the interposition of this control, as the event showed, was equal to
the occasion.
' j /It is worthy of remark, and explanatory of the intentions of the legis-
lature, that the words " not law, but utterly null, void, and of no force or
effect," which had followed, in one of the resolutions, the word " uncon-
stitutional," were struck out by common consent. Though the words
were in fact but synonymous with " unconstitutional ;" yet to guard
against a misunderstanding of this phrase as more than declaratory of
opinion, the word " unconstitutional" alone was retained, as not liable to
that danger.
The published address of the legislature to the people, their constituents,
affords another conclusive evidence of its views. The address warns
them against the encroaching spirit of the general government, argues the
unconstitutionality of the alien and sedition-acts, points to other instances
in which the constitutional limits had been overleaped ; dwells upon the
dangerous mode of deriving power by implication ; and in general presses
the necessity of watching over the consolidating tendency of the federal
policy. But nothing is said that can be understood to look to means of
maintaining the rights of the states, beyond the regular ones, within the
forms of the Constitution.
If any further lights on the subject could be needed, a very strong one
is reflected in the answers to the resolutions, by the states which protested
against them. The main objection of these, beyond a few general com-~
I plaints of the inflammatory tendency of the resolutions, was directed
against the assumed authority of a state legislature to declare a law of
the United States unconstitutional, which they pronounced an unwarranta-
ble interference with the exclusive jurisdiction of the Supreme Court of the
United States. Had the resolutions been regarded as avowing and main-
taining a right, in an individual state, to arrest, by force, the execution of
a law of the United States, it must be presumed that it would have been a
conspicuous object of their denunciation. ' *
With cordial salutations,
JAMES MADISON.
* See the concluding resolution of 1798.
APPENDIX. MADISON TO INGERSOLL. 257
v,
MR. MADISON TO MR. INGERSOLL.
Montpelier, Feb. 2, 1831.
DEAR SIR,
I have received your letter of January 21, asking .
1. Is there any state power to make banks?
2. Is the federal power, as it has been exercised, or as proposed to be
exercised by President Jackson, preferable ?
The evil which produced the prohibitory clause in the Constitution of
the United States, was the practice of the states in making bills of credit,
and in some instances appraised property, " a legal tender." If the notes
<&f state banks, therefore, whether chartered or unchartered, be made a
legal tender, they are prohibited ; if not made a legal tender, they do not
fall within the prohibitory clause. The number of the " Federalist" re-
ferred to, was written with that view of the subject ; and this, with pro-
bably other cotemporary expositions, and the uninterrupted practice of the
states in creating and permitting banks without making their, notes a legal
tender, would seem to be a bar to the question, if it were not inexpedient
now to agitate it.
A virtual and incidental enforcement of the depreciated notes of state
banks, by their crowding out a sound medium, though a great evil, was
not foreseen ; and if it had been apprehended, it is questionable whether
the Constitution of the United States, which had so many obstacles to
encounter, would have ventured to guard against it by an additional pro-
vision. A virtual, and it is hoped, an adequate remedy, may hereafter be
found in the refusal of state paper when debased, in any of the federal
transactions, and in the control of the federal bank, this being itself con-
trolled from suspending its specie payments by the public authority.
On the other question, I readily decide against the project recommended
by the President. Reasons more than sufficient appear to have been pre-
sented to the public, in the reviews and other comments which it has
called forth. How far a hint for it may have been taken taken from Mr.
Jefferson, I know not. The kindred ideas of the latter may be seen in
his Memoirs, &c., vol. iv., pages 196, 207, 526, and his view of the state
banks, vol. iv., pages 199, 220.
There are sundry statutes of Virginia prohibiting the circulation of
notes payable to bearer, whether issued by individuals or unchartered
banks.
These observations, little new or important as they may be, would have
been promptly furnished, but for an indisposition in which your letter
found me, and which has not yet entirely left me. I hope this will find
you in good health, and you have my best wishes for its continuance, and
the addition of every other blessing.
JAMES MADISON.
Charles J. Ingersoll, Esq., Harrisburg, Pa.
258 APPENDIX. MADISON TO INGERSOLL.
MR. MADISON TO MR. INGERSOLL. ,
Montpelier, June 25, 1831.
DEAR SIR,
I have received your friendly letter of the 18th inst. The few lines
which answered your former one of the 21st of January last, were writ-
ten in haste and in bad health j but they expressed, though without the
attention in some respects due to the occasion, a dissent from the views
of the President, as to a bank of the United States and a substitute for it ;
to which I cannot but adhere. The objections to the latter have appeared
to me to preponderate greatly over the advantages expected from it, and
the constitutionality of the former I still regard as sustained by the con-
siderations to which I yielded in giving my assent to the existing bank.
The charge of inconsistency between my objection to the constitution-
ality of such a bank in 1791, and my assent in 1817, turns on the ques-
tion, how far legislative precedents, expounding the Constitution, ought to
guide succeeding legislatures, and to overrule individual opinions.
Some obscurity has been thrown over the question, by confounding it
with the respect due from one legislature to laws passed by preceding
legislatures. But the two cases are essentially different. A constitution
being derived from a superior authority, is to be expounded and obeyed,
not controlled or varied by the subordinate authority of the legislature.
A law, on the other hand, resting on no higher authority than that pos-
sessed by every successive legislature, its expediency as well as its mean-
ing, is within the scope of the latter.
The case in question has its true analogy in the obligation arising from
judicial expositions of the law on succeeding judges ; the constitution
being a law to the legislator, as the law is a rule of decision to the judge.
And why are judicial precedents, when formed on due discussion and
consideration, and deliberately sanctioned by reviews and repetitions', re-
garded as of binding influence, or rather of authoritative force, in settling
the meaning of a law? It must be answered: 1st. Because it is a rea*
sonable and established axiom, that the good of society requires that the
rules of conduct of its members should be certain and known, which
would not be the case, if any judge, disregarding the decisions of his pre-
decessors, should vary the rule of law according to his individual inter-
pretation of it. Misera est, servitus ubijus est aut vagum, aut incognitum.
2d. Because an exposition of the law publicly made, and repeatedly con-
firmed by the constituted authority, carries with it, by fair inference, the
sanction of those who, having made the law through their legislative
organ, appear under such circumstances to have determined its meaning
through their judiciary organ.
Can it be of less consequence that the meaning of a constitution should
be fixed and known, than that the meaning of a law should be so ? Can
indeed a law be fixed in its meaning and operation, unless the constitution
be so ? On the contrary, if a particular legislature, differing in the con-
APPENDIX. MADISON TO INGERSOLL. 259
struction of the constitution, from a series of preceding constructions, pro-
ceed to act on that difference, they not only introduce uncertainty and in-
stability in the constitution, but in the laws themselves ; inasmuch as all
laws preceding the flew construction and inconsistent with it, are not only
annulled for the future, but virtually pronounced nullities from the be-
ginning.
But it is said that the legislator, having sworn to support the constitu-
tion, must support it in his own construction of it, however different from
that put on it by his predecessors, or whatever be the consequences of the
construction. And is not the judge under the same oath to support the
law ? yet has it ever been supposed that he was required, or at liberty to
disregard all precedents, however solemnly repeated and regularly ob-
served ; and, by giving effect to his own abstract and individual opinions,
to disturb the established course of practice in the business of the com-
munity? Has the wisest and most conscientious judge ever scrupled to
acquiesce in decisions in which he has been overruled by the mature
opinions o the majority of his colleagues, and subsequently to conform
himself thereto, as to authoritative expositions of the law ? And is it not
reasonable that the same view of the official oath should be taken by a
legislator, acting under the constitution, which is his guide, as is taken by
a judge, acting under the law, which is his ?
There is in fact and in common understanding, a necessity of regarding
a course of practice, as above characterized, in the light of a legal rule of
interpreting a law ; and there is a like necessity of considering it a con-
stitutional rule of interpreting a constitution.
That there may be extraordinary and peculiar circumstances control-
ling the rule in both cases, may be admitted : but with such exceptions,
the rule will force itself on the practical judgment of the most ardent
theorist. He will find it impossible to adhere to, and act officially upon,
his solitary opinions as to the meaning of the law or constitution, in op-
position to a construction reduced to practice, during a reasonable period
of time ; more especially where no prospect existed of a change of con-
struction by the public or its agents. And if a reasonable period of time,
marked with the usual sanctions, would not bar the individual preroga-
tive, there could be no limitation to its exercise, although the danger of
error must increase with the increasing oblivion of explanatory circum-
stances, and with the continual changes in the import of words and
phrases.
Let it then be left to the decision of every intelligent and candid judge,
which, on the whole, is most to be relied on for the true and safe con-
struction of a constitution, that which has the uniform sanction of suc-
cessive legislative bodies through a period of years, and under the varied
ascendency of parties ; or that which depends upon the opinions of every
new legislature, heated as it may be by the spirit of party, eager in the
pursuit of some favourite object, or led astray by the eloquence and ad-
dress of popular statesmen, themselves, perhaps, under the influence of
the same misleading causes.
It was in conformity with the view here taken of the respect due to
deliberate and reiterated precedents, that the Bank of the United States,
260 APPENDIX. MADISON TO INGERSOLL.
though on the original question held to be unconstitutional, received the
executive signature in the year 1817. The act originally establishing a
bank had undergone ample discussions in its passage through the several
branches of the government. It had been carried into execution through-
out a period of twenty years with annual legislative recognitions ; in one
instance indeed, with a positive ramification of it into a new state ; and
with the entire acquiescence of all the local authorities, as well as of the
nation at large, to all of which may be added, a decreasing prospect of
any change in the public opinion adverse to the constitutionality of such
an institution. A veto from the executive under these circumstances,
with an admission of the expediency, and almost necessity of the measure,
would have been a defiance of all the obligations derived from a course of
precedents amounting to the requisite evidence of the national judgment
and intention.
It has been contended that the authority of precedents was in that case
invalidated by the consideration, that they proved only a respect for the
stipulated duration of the bank, with a toleration of it until the*law should
expire, and by the casting vote given in the Senate by the Vice-President
in the year 1811, against a bill for establishing a national bank, the vote
being expressly given on the ground of unconstitutionality. But if the
law itself was unconstitutional, the stipulation was void, and could not be
constitutionally fulfilled or tolerated. And as to the negative of the Senate
by the casting vote of the presiding officer, it is a fact well understood at
the time, that it resulted not from an equality of opinions in that assembly
on the power of Congress to establish a bank, but from a junction of those
who admitted the power, but disapproved the plan, with those who denied
the power. On a simple question of constitutionality, there was a decided
majority in favour of it.
Mrs. Madison joins me in hoping that you will not fail to make the in-
tended visit to Virginia, which promises us the pleasure of welcoming you
to our domicile, and in a sincere return of all the good wishes you kindly
express for us.
JAMES MADISON.
Mr. Ingersoll.
INDEX.
A.
Agriculture, Report on, 1797, 199, 200.
Alien Act, 117.
Held constitutionality R. Island, 169.
Massachu-
setts, 170.
Connecti-
cut, 175.
N. Hamp-
shire,!^.
Held unconstitutional by Virginia,
23.
Constitutionality discussed in Vir-
ginia Report, 203.
Unites legislative, executive, and
judicial powers, 209.
Subverts principles of free govern-
ment, 210.
Subverts U. S. Constitution, 210.
And Sedition Act, not to be resisted
by force, 41, 42, 54, 59, 113,
115, 230, 253.
Allen, John, Speech of for the Resolu-
lutions, 52.
Amendments, to instructions to Senators,
January 4, 1800, 244 to
248.
To Virginia Resolutions, by
Mr. Giles, 148.
To Virginia Resolutions,
rejected, 150, 155, 156,
158.
Analysis of Virginia Report, 178.
Appendix, 249 to 260.
Army, of United States, increase con-
demned, 239.
Regular, objectionable, 241.
Assembly, General, of Virginia, list of
members, 1798-9, 159.
Assembly, General, of Virginia, list of
members, 1799, 1800, 233.
Ayes and Noes, on instructions to Sena-
tors, January 4, 1800,
244 to 248.
On Virginia Resolutions,
156 to 158.
On Virginia Report, 236-7.
B.
Bailey, Thomas M., Speech against the
Resolutions, 122.
Bank Law of 1791, 197.
Barbour, James, Speech for the Resolu-
tions, 54.
Boiling, P., Speech against Lee's amend-
ment to Resolutions, 148.
Brooke, Edmund, Speeches against Vir-
ginia Resolutions,
79, 99.
Moves to amend Reso-
lutions, 150.
Amendment laid on
table, 150.
C.
Carriage tax, 198.
Common defence, clause in federal Consti-
tution relative to, 199, 201.
Common law, no part of laws of United
States, 243.
Argumen-t against, as part
of federal jurisprudence,
211 to 217.
Not the general law prior
to the Revolution, 211.
Not introduced by Revolu-
tion, 212.
Nor by articles of Confede-
ration, 213.
Nor by present Constitu-
tion, 213 to 217.
Difficulties of opposite con-
struction, 215.
Consequences of opposite
construction, 216.
Compact, Federal Constitution one, 190.
See Constitution.
Connecticut, Counter Resolutions of, 175.
Construction of Federal Constitution.
See Constitution.
Consolidation of these states, 201-2.
262
INDEX.
Constitution of United States.
See Alien Act and Sedi-
tion Act. '
Common Law.
Is a compact, to which the states are
parties, 190, 191.
How breach of it is determined, 192.
Construction by states, in last resort,
192 to 196.
Not to be vindicated, by force, by
states, 41, 42, 54, 59, 113, 115, 230,
255.
Construction by judiciary, and other
departments, 195.
Forced constructions of, 197-8.
General phrases in, interpreted, 199-
201.
Confers not powers on states, but is
derived from them, 208.
Subverted by alien law, 210.
Does not justify sedition law, 210 to
224.
Rules for construing, 218.
Counter-resolutions of Delaware, 168.
Rhode Island, 169.
Massachusetts, 170.
Connecticut, 175.
N. Hampshire, 176.
N. York, 174.
Vermont, 177.
How received by the Virginia Legis-
lature, 189.
Cowan, William, Speech against the Re-
solutions, 100.
Cureton, James, Speeches against the Re-
solutions, 109, 111.
D.
Daniel, William, Speech for the Resolu-
tions, 83.
Debate on Virginia Resolutions, 24 to 158.
Delaware, Counter- Resolutions of, 166.
Delegates, House of, orders 5000 copies of
Virginia Report, 233.
List of members, 1798-9, 159.
1799-1800, 233.
Departments, Judicial. See Judiciary and
Constitution.
Construction of Constitution by, 195-
196.
Blended by Alien Act, 209.
E.
Everett, Edward, Mr. Madison's Letter
to, 249.
Executive, in the event of consolidation of
states, 201-2.
Blended with other departments by
Alien Act, 209.
F.
Foushee, William, Speech for the Resolu-
tions, 76.
Force, not contemplated by Virginia Re-
solutions. See Virginia Resolu-
tions.
France, Difficulties of the United States,
with, 238-9.
Intercourse with, 241.
G.
General Assembly. See Assembly.
General phrases in Constitution, their
meaning, 199 to 201.
General welfare, clause relative to, 201.
Giles, William B., Speech for the Resolu-
tions, 143.
Moves amendment to Resolutions,
which is accepted, 148.
Speech against Lee's amendment, 150.
Government, Federal, powers result from
compact, 190-91.
I.
Ingersoll, Charles J., Mr. Madison's Letter
to, 257, 258.
Instructions to Virginia Senators, January,
1800, 238.
Amendments to proposed, 244
to 248.
International Law, Operation on Aliens.
205-6.
J.
Johnston, Peter, Speech for the Resolu-
tions, 109.
Judiciary, to construe Constitution in last
resort.
Affirmed by Rhode Island, 169.
Massachusetts, 170.
New York, 174.
N. Hampshire, 176.
Vermont, 177.
Denied by Virginia Report, 195,
196.
Blended with other departments
by Alien Act, 209.
Justice, preventive and punitive, 203-4.
K.
Kentucky Resolutions, 162.
Condemned by New York, 174.
New Hampshire, 176.
L.
Law, See Common Law and International
Law,
INDEX.
263
Lee, General Henry, Speeches agains
Virginia Resolutions, 103, 150-
153.
Moves to amend Resolutions, 160
Debate on his amendment, 150 t
155.
Amendment rejected, and vote, 155
156.
Legislature of States not to construe Con
stitution.
Affirmed by Rhode Island, 169.
Massachusetts, 170
New York, 174.
N.Hampshire, 176.
Vermont, 177.
Doctrine of Virginia Report
230.
Of Virginia, instructions to
Senators, January, 1800
238.
Resolutions 1798-9. See
Virginia Resolutions.
Report to 1799-1800. See
Virginia Report.
Blended with other depart-
ments by Alien Act, 209.
Letters, Madison to Everett, 249.
Ingersoll, 257.
Same, 258.
M.
Madison, James, Letter to Everett, 249.
Ingersoll, 257-8.
Magill, Archibald. Speech against the
Resolutions, 71.
Manufactures, Report on, 1791, 191.
Mason, Stevens T., Instructions to as
Senator, January, 1800, 238.
Massachusetts, counter Resolutions of, 170.
Condemns Virginia Reso-
lutions, 170.,
Mercer, Jno., Speech for the Resolutions,
40.
Military Establishment of United States.
See Army.
Militia, Natural defence of United States,
240-41.
Monarchy, result of consolidation of states,
201.
N.
Navy, increase condemned, 242-3.
Necessary and proper, what laws are, 9,
207, 219.
New Hampshire, Counter-Resolutions of,
176.
New York, Counter-Resolutions of, 174.
Nicholas, Wilson C., instructions to as
senator, 238.
Speeches for the Resolutions, 99, 154.
Noes and ayes See Ayes and Noes.
P.
Pope, John, speeches for the Resolutions,
50, 82.
Press, freedom of, 220.
R.
Report of Virginia. See Virginia Report.
Resistance, forcible, not contemplated by,
Resolutions. See Virginia Reso-
lutions.
Resolutions of Virginia. See Virginia
Resolutions.
Of Kentucky. See Kentucky Reso-
lutions.
Counter. See Counter-Resolutions.
Rhode Island, Counter- Resolutions of, 169.
Ruffin, Wm., speech for the Resolutions,
38.
S.
Sedition Act, 20.
Held constitutional by Rhode Island,
169.
Massachusetts, 170.
New York, 174.
Connecticut, 175.
New Hampshire, 176.
Vermont, 177.
Held unconstitutional by Virginia,
Argument against its constitutionality,
200 to 224.
Exercises powers not delegated, 200.
Exercises powers prohibited, 219.
Ought to produce universal alarm,
224.
Senate of Virginia, list of members,
1798-9, 158.
1799-1800, 237.
Senators of Virginia, instructions to, Jan.
1800, 238.
Speeches, in favour of the Resolutions.
Taylor, John, 24, 111, 148.
Ruffin, William, 38.
Mercer, John, 40.
Pope, John," 50," 82.
Allen, '
, John, 52.
Barbour, James, 54.
Foushee, William, 76.
Daniel, William, 83.
Nicholas, Wilson C., 99, 150.
Johnston, Peter, 109.
Giles, William B., 143, 150.
Boiling, P., 148.
Tyler, Samuel, 154.
Speeches against the Resolutions.
Taylor, -George Keith, 29, 122.
Magill, Archibald, 71.
Brooke, Edmund, 79, 99.
Cureton, James, 109, 111.
264
INDEX.
Speeches against the Resolutions.
Lee, Henry, 103, 150, 153.
Cowan, William, 100.
Bailey, Thomas M., 122.
States, Legislatures of. See Legislature.
Parties to Federal Constitution, 191.
Meaning of term, 191.
To interpose to arrest usurpation, &c.,
192.
Their consolidation, a monarchy,
201.
Do not derive their powers from the
Federal Constitution, 208-9.
T.
Taylor, John, speeches for the Resolutions,
24, 111, 148.
Accepts Mr. Giles's amendment, 148.
His resolutions as offered, 148.
adopted, 22.
See Virginia Resolutions.
Taylor, George Keith, Speeches against
the Resolutions, 29, 122.
Tyler Samuel, Speech for the Resolutions,
154.
V.
Vermont, Counter-Resolutions of, 177.
Virginia Instructions to Senators, January,
1800, 238.
Virginia Report, 1799-1800, 189.
5000 copies printed, 233.
Preamble to, 189.
Analysis of, 178.
Virginia Report, recites and comments on
1st Resolution, 1798-9, 189.
2d Resolution, 190.
3d 190.
4th 196.
5th Alien Act, 202.
Sedition Act, 210.
6th 228.
7th and 8th 230.
Vote on, 236-7.
Virginia Resolutions, 1798-9, as offered,
148.
as adopted, 22.
Condemned by Delaware, 168.
Massachusetts, 170.
New York, 174.
Connecticut, 175.
New Hampshire, 176.
Vermont, 177.
Recited and commented on in Virginia
Report. See Virginia Report.
Debates on, 24 to 158.
Offered by John Taylor, 24.
See Speeches.
Votes on in House of Delegates, 155 to
158.
Senate, 158.
Did not contemplate force,
According to Report, 230 to 232.
Mr. Madison, 255.
Mercer, 41, 42.
B arbour, 54, 59.
J.Taylor, 113, 115.
Amended in passage, 150.
Amendments proposed and rejected,
150 to 157.
Vote on, 157.
Votes on Resolutions, 155 to 158.
on Report, 236-7.
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